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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, et al.,
Plaintiffs
vs.
CITY OF HAZLETON,
Defendant

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CIVIL ACTION NO. 3:06-cv-01586-JMM

DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ AMENDED
PETITION FOR ATTORNEY’S FEES AND COSTS

s/ Kris W. Kobach
KRIS W. KOBACH
Kansas State Bar No. 17280, pro hac vice
KOBACH LAW, LLC
4701 N. 130th St.
Kansas City, Kansas 66109
(913) 638-5567

ATTORNEY FOR DEFENDANT

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ............................................................................................. iii
I.

FACTUAL AND PROCEDURAL BACKGROUND.............................................1

II.

LEGAL STANDARD FOR FEE AWARD .............................................................5

III.

ARGUMENTS AND AUTHORITIES....................................................................6
A.

The Plaintiffs Are Not Entitled to Attorney’s Fees For Their Appellate
Litigation of Preemption Claims Exclusively ..............................................6

B.

The Plaintiffs’ Attorneys’ Numbers of Hours Are Unreasonably Inflated
by the Use of Redundant Attorneys .............................................................9

C.

The Plaintiffs Assert Inflated and Unreasonable Billing Rates that Have
Already Been Rejected by this Court.........................................................12

D.

The Plaintiffs Prevailed only Partially Because the Private Cause
of Action Provisions and the Official English Provisions Remain
in Place .......................................................................................................15

E.

The Plaintiffs are Not Entitled to Work on Claims that Did Not
Succeed ......................................................................................................19

F.

Any Award of Fees and Costs Should be Extended Over Time Because
the City is on the Verge of Insolvency.......................................................20

IV. CONCLUSION...........................................................................................................22
CERTIFICATE OF SERVICE ..........................................................................................25

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TABLE OF AUTHORITIES
Cases
Alexander v. Sandoval, 532 U.S. 275 (2001).....................................................................19
Black Grievance Comm. v. Philadelphia Elec. Co.,
802 F.2d 648 (3d Cir. Pa. 1986)...............................................................................5
Boston & Me. Corp. v. Town of Ayer, 330 F.3d 12 (1st Cir. 2003) .....................................6
Buck v. Stankovic, 2008 U.S. Dist. LEXIS 65572, No. 3:07-CV-0717,
(M.D. Penn. Aug. 27, 2008).......................................................................13, 14, 22
Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) ................................................4
City of Hazleton v. Lozano, et al., 131 S. Ct. 2958 (2011) ..................................................4
City of Hazleton v. Lozano, 134 S. Ct. 1491 (2014) ............................................................4
Farrar v. Hobby, 506 U.S. 103 (1992) ..............................................................................16
Fox v. Vice, 131 S. Ct. 2205 (2011) ...................................................................................12
Gilbert v. Synagro, 2008 U.S. Dist. LEXIS 98949 (M.D. Penn. Dec. 8, 2008) ................15
Gould, Inc. v. Wisconsin Department of Industry, Labor & Human Relations,
750 F.2d 608 (7th Cir. 1984), aff'd on other grounds, 475 U.S. 282 (1986) ...........6
Gustafson v. City of Lake Angelus, 76 F.3d 778 (6th Cir. 1996) .........................................6
Hensley v. Eckerhart, 461 U.S. 424 (1983) .........................................................5, 9, 16, 19
Holmes v. Millcreek Township Sch. Dist., 205 F.3d 583 (3d Cir. 2000) .............................9
In re Initiative Petit.No. 366, 46 P.3d 123 (Okla. 2002)....................................................19
Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897 (3d Cir. 1985) .....19, 20
Interfaith Community Organization v. Honeywell Int’l, Inc.,
426 F.3d 694 (3d Cir. 2005).....................................................................................5
J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469 (10th Cir. 1985).............................6
J.S. v. Blue Mt. Sch. Dist., 2014 U.S. Dist. LEXIS 44732 (M.D. Pa. 2014)........................9

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Keller v. City of Fremont, 719 F.3d 931 (8th Cir. 2013)
reh’gen banc denied (Oct. 17, 2013), cert denied, 134 S. Ct. 2140 (2014) .............1
Lima v. Newark Police Department, 658 F.3d 324 (3d Cir. 2011) ......................................3
Lohman v. Duryea Borough, No. 3:05-CV-1423,
2008 U.S. Dist. LEXIS 57981(M.D. Penn. July 30, 2008) ....................................15
Lozano, et al. v. City of Hazleton, 496 F.Supp. 2d 477 (M.D. Penn. 2007) ........................3
Lozano, et al. v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010) ..........................................4
Lozano, et al. v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013) ..........................................4
Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001) ........................................................9
Maryland Pest Control Assoc. v. Montgomery County,
884 F.2d 160 (4th Cir. 1989) ...................................................................................6
McKenna v. City of Philadelphia, 582 F.3d 447 (3d Cir. 2009) ..........................................5
Perdue v. Kenny A., 130 S.Ct. 1662 (2010) .........................................................................5
Planned Parenthood of Houston and Southeast Texas,
480 F.3d 734 (5th Cir. 2007) ...................................................................................6
Pub. Int. Research Grp of N.J., Inc. v. Windall, 51 F.3d 1179 (3d Cir. 1995) ....................9
Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990) ........................................................20
Silva v. St. Anne Catholic School, 595 F. Supp. 2d 1171 (D. Kan. 2009) .........................19
Smith v. Borough of Dunmore, No. 3:05-CV-1343,
2008 U.S. Dist. LEXIS 80450 (M.D. Penn. Oct. 9, 2008).....................................15
Smith v. Robinson, 468 U.S. 992 (1984) ..............................................................................7
Segundo v. City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987) ....................................6
Federal Statutes
8 U.S.C. § 1373(c) ...........................................................................................................2, 3
42 U.S.C. § 1981 ........................................................................................................4, 6, 19
42 U.S.C. § 1983 ..................................................................................................................6

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42 U.S.C. § 1988 ........................................................................................................6, 7, 16
Local Ordinances
Illegal Immigration Relief Act Implementation Amendment, Ordinance 2006-40 ......................... 1

Illegal Immigration Relief Act Ordinance, Ordinance 2006-10 ..........................................1
Illegal Immigration Relief Act Ordinance, Ordinance 2006-18 ........................1, 2, 3, 4, 18
Official English Ordinance, 2006-19 ...................................................................1, 3, 18, 19
Rental Registration Ordinance, Ordinance 2006-13 ............................................................1
Other Sources
http://latinojustice.org/civil_rights/hazleton_story/ ...........................................................11
http://www.dmvlawfirm.com/legalteam.php?action=view&id=1 .....................................13
http://www.dmvlawfirm.com/legalteam.php?action=view&id=8 .....................................13
http://www.dmvlawfirm.com/legalteam.php?action=view&id=13 ...................................13
http://www.uscis.gov/e-verify/about-program/e-verify-employers-search-tool ................18

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I. FACTUAL AND PROCEDURAL BACKGROUND
Hazleton, Pennsylvania, is a Third Class City that experienced a rapid increase in
population during 2001-06, from approximately 23,000 to 30,000-33,000 residents, due in part to
an unusually high influx of illegal aliens. The population increase was not accompanied by any
additional income tax revenues, because many of the new arrivals worked “off the books.” This
overloaded the City’s budget, and the school district experienced a dramatic increase in costs.
The City experienced numerous drug trafficking crimes involving illegal aliens, illegal-aliendominated street gangs moved into Hazleton, and illegal aliens committed several murders. In
Julyof 2006, the Mayor and City Council decided to exercise what they believed was their
authority to take limited steps to discourage the employment and harboring of illegal aliens. This
was an area of law in which the boundaries of federal preemption were unclear at the time. It
should be noted that while the Third Circuit subsequently struck down some provisions of the
Ordinance that the City of Hazleton enacted, the Eighth Circuit simultaneously sustained similar
provisions enacted by the City of Fremont, Nebraska. Keller v. City of Fremont, 719 F.3d 931
(8th Cir. 2013) reh’gen banc denied (Oct. 17, 2013), cert denied, 134 S. Ct. 2140 (2014). The
Supreme Court declined to grant a writ of certiorari in both cases, so the circuit split remains in
place.
On July 13, 2006, the City of Hazleton enacted Ordinance 2006-10, the “Illegal
Immigration Relief Act Ordinance.” On August 15, 2006, the City enacted Ordinance 2006-13,
the “Rental Registration Ordinance.” On September 21, 2006, Hazelton enacted Ordinance
2006-18, the “Illegal Immigration Relief Act Ordinance” (“IIRAO”) and 2006-19, the “Official
English Ordinance” to replace Ordinance 2006-10.1 Taken together, these ordinances contain

1

On December 28, 2006, in an effort to clarify various aspects of Ordinance 2006-18, Hazleton
enacted Ordinance 2006-40, the “Illegal Immigration Relief Act Implementation Amendment,”
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essentially four different mechanisms to address the problems caused by illegal immigration in
the City: (1) the employment provisions enforced by the City, (2) the employment provisions
enforced by a private cause of action held by displaced employees, (3) the apartment rental
provisions, and (4) the Official English provisions.
The employment provisions of the IIRAO that are enforced by the City allowed the City
to revoke the business license of any business entity that knowingly employs unauthorized
aliens, after first giving the business entity notice and an opportunity to correct the violation. §
4.A-B. The IIRAO relied on the federal government’s verification of a person’s work
authorization, pursuant to 8 U.S.C. § 1373(c). § 4.B(3). Employers that use the federal
government’s E-Verify Program to verify the work authorization of their employees were
granted safe harbor against the loss of their business licenses. § 4.B(5).
The employment provisions of the IIRAO that are enforced by displaced employees
created a private cause of action held by an employee who is discharged from his position. §
4.E. This discharge of such an employee creates a private cause of action if on the date of his or
her discharge the employer was not a registered user of the E-Verify Program and the employer
was employing an unlawful worker. § 4.E(1). The discharged employee possesses a private
cause of action against the employer in the Municipal Court of Hazleton. If the employee
prevails, he or she may recover three times the actual damages sustained, including lost wages
from the date of the discharge until the date the employee procures new employment at an
equivalent wage, for a period of up to a period of one hundred and twenty days. § 4.E(2). As
explained below, the private cause of action provisions are in effect today.
which added a final section to the IIRA. On March 21, 2007, Hazleton enacted Ordinance 20076, which eliminated the following language from §§ 4.B.2 and 5.B.2 of Ordinance 2006-18:
“solely and primarily.” It also added the word “knowingly” to §4.A of Ordinance 2006-18.
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The apartment rental provisions of the IIRAO rendered it unlawful for a landlord to
knowingly provide rental accommodations to an illegal alien. § 5.A. Those provisions required
the City to verify the lawful presence of any alien tenant when in receipt of a written, valid,
signed complaint alleging evidence of unlawful presence and not based on the race, ethnicity, or
national origin of the tenant. § 5.B(1)-(2). The rental provisions of the IIRAO applied federal
definitions of unlawful presence in the United States, §§ 3.D, 6.A; and the City relied on the
federal government’s verification of an alien’s immigration status, according to the terms of 8
U.S.C. § 1373(c). §§ 7.E, 7.G.
The Official English Ordinance declared that English is the official language of the City
of Hazleton. Ordinance 2006-19, § 3.1. It provided that all official actions of the City that bind,
commit, or represent the official position of the City, including meetings, ordinances, and
declarations, must be in the English language, subject to specified exceptions. Id., §§ 3.D, 4. It
also provided that no person may be excluded from employment or other opportunities provided
by the City for the reason that the person speaks only the English language. Id., § 3.F.
On October 30, 2006, the Plaintiffs filed an Amended Complaint and a motion for a
preliminary injunction seeking to enjoin the City from enforcing the Ordinances. On October 31,
2006, this Court granted the Plaintiffs’ request for a Temporary Restraining Order. On January
12, 2007, the Plaintiffs filed a Second Amended Complaint seeking a permanent injunction of
the Ordinances. This Court held a bench trial on March 12-22, 2007. On July 26, 2007, this
Court issued an opinion; and on August 7, 2007, this Court issued a final order granting a
permanent injunction, holding principally that the IIRAO was preempted by federal law, Lozano,
et al. v. City of Hazleton, 496 F.Supp. 2d 477, 517-33 (M.D. Penn. 2007). This Court also found
that the Ordinances violated the procedural due process rights of the Plaintiffs, id. at 533-539,

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and violated 42 U.S.C. § 1981, id. at 546-48. This Court dismissed the remainder of the
Plaintiffs’ independent causes of action.2
On August 23, 2007, the City appealed the decision to the United States Court of Appeals
for the Third Circuit. On September 9, 2010, the Third Circuit affirmed the preemption decision
of this Court but differed in its reasoning. Lozano, et al. v. City of Hazleton, 620 F.3d 170 (3d
Cir. 2010). The Third Circuit also determined that the Plaintiffs lacked standing to challenge the
private cause of action provisions of the IIRAO. Accordingly, the Third Circuit held that “the
district court lacked jurisdiction to consider the merits of these Plaintiffs’ challenges to the
IIRAO’s private cause of action.” Id. at 187. As a result, the private cause of action provisions
remain in effect today. Importantly, the Third Circuit never addressed the due process and §
1981 issues presented in the City’s appeal, since the preemption holding was sufficient to sustain
the decision below.
On December 8, 2010, the City filed its first Petition for Certiorari to the Supreme Court.
On June 6, 2011, the Supreme Court granted the Petition, vacated the Third Circuit’s decision,
and remanded the case in its entirety for reconsideration in light of Chamber of Commerce v.
Whiting, 131 S. Ct. 1968 (2011). City of Hazleton v. Lozano, et al., 131 S. Ct. 2958 (2011). On
July 26, 2013, the Third Circuit issued its second opinion, once again holding that both the
employment provisions and the harboring provisions of the ordinances were preempted. Lozano,
et al. v. City of Hazleton, 724 F.3d 297 (3d Cir. 2013). The Supreme Court denied the City’s

2

This Court did not find an independent police powers violation. Rather, the Court held that,
insofar as the Ordinances violated the Plaintiffs’ rights, the City necessarily had exceeded its
police powers: “As we have found that the defendant's ordinances violate the plaintiffs'
fundamental rights under the United States Constitution we need not determine whether they are
otherwise a valid exercise of its police powers. In other words, enacting an unconstitutional
ordinance is in itself a violation of the defendant's police powers.”496 F.Supp.2d at 554.
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second Petition for a Writ of Certiorari on March 3, 2014. City of Hazleton v. Lozano, 134 S. Ct.
1491 (2014).

II. LEGAL STANDARD FOR FEE AWARD
A reasonable fee is that which is sufficient to induce a capable attorney to undertake the
representation of a meritorious civil rights case. Perdue v. Kenny A., 130 S.Ct. 1662, 1672
(2010); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The prevailing party bears the burden
of establishing entitlement to an award of attorney’s fees and of documenting the hours worked
and the appropriate hourly rate. Hensley, 461 U.S. 424, 437 (1983). The product of the number
of hours worked multiplied by the hourly rate, called the lodestar amount, is the starting point in
awarding attorney’s fees. Id. at 433.
The court has a positive and affirmative duty to conduct a thorough and searching analysis to
identify excessive, redundant, or otherwise unnecessary charges. Interfaith Community
Organization v. Honeywell Int’l, Inc., 426 F.3d 694, 713 (3d Cir. 2005) (internal quotations and
citations omitted); see also McKenna v. City of Philadelphia, 582 F.3d 447, 459 (3d Cir. 2009).
Once the proper lodestar amount has been calculated, the court must then consider other factors,
such as the “results obtained” in fashioning an award of fees that is reasonable and appropriate.
Hensley, 461 U.S. at 433-34; Lima v. Newark Police Department, 658 F.3d 324, 333 (3d Cir.
2011) (the degree of overall success goes to the reasonableness of the award, not to its
availability); Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 651 (3d Cir. Pa.
1986) (“Because each litigation involves unique factors, however, the basic fee (known as the
lodestar) may be adjusted upward or downward based on such factors as the result obtained.”).

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III. ARGUMENTS AND AUTHORITIES

A. The Plaintiffs AreNot Entitled to Attorney’s Fees For Their Appellate Litigation of
Preemption Claims Exclusively.
The Plaintiffs in this matter seek an extraordinary sum of attorney’s fees, for every aspect
of their work in this litigation, regardless of whether it concerns a civil rights claim or a claim
that does not fall under 42 U.S.C. § 1983. However, a plaintiff is only entitled to attorney’s fees
under 42 U.S.C. § 1988 if the plaintiff prevails on a “civil rights” issue. It is well established
that a preemption claim does not constitute a civil rights claim under § 1988; and prevailing on a
preemption claim does not entitle a plaintiff to recover attorney’s fees. “In regard to attorneys
fees, a claim premised on a violation of the Supremacy Clause through preemption is not
cognizable under 42 U.S.C. § 1983.” Gustafson v. City of Lake Angelus, 76 F.3d 778, 792 (6th
Cir. 1996) (citing J. & J. Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1476-77 (10th Cir.
1985)). “[F]ederal preemption of local ordinances pursuant to the Supremacy Clause is not
actionable under Section 1983. Therefore, there can be no award of attorney’s fees under
Section 1988.” Maryland PestControl Assoc. v. Montgomery County, 884 F.2d 160, 163 (4th
Cir. 1989); Planned Parenthood of Houston and Southeast Texas, 480 F.3d 734, 738 (5th Cir.
2007); Boston & Me. Corp. v. Town of Ayer, 330 F.3d 12, 18 (1st Cir. 2003); Gould, Inc. v.
Wisconsin Department of Industry, Labor & Human Relations, 750 F.2d 608 (7th Cir.
1984), aff'd on other grounds, 475 U.S. 282 (1986); Segundo v. City of Rancho Mirage, 813 F.2d
1387, 1394 (9th Cir. 1987). However, the Plaintiffs’ only winning claim that has been reviewed
on appeal is their preemption claim – one that does not afford them attorney’s fees.

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The Plaintiffs did prevail on two civil rights claims at the district court level: their
procedural due process claim and their § 1981 claim. However, the Third Circuit never reached
those issues because it was able to sustain the decision below by reaching only the preemption
question. The City consequently was deprived of its opportunity to have the Court of Appeals
review this Court’s decision regarding the two civil rights claims.
The Defendant acknowledges that a plaintiff may be entitled to an award of
attorney’s fees under 42 U.S.C. § 1988 where he has succeeded on a non-fee generating claim
and the fee-generating claim remains unadjudicated, is substantial, and either arises out of a
“common nucleus of operative fact” or is based on related legal theories. Smith v. Robinson, 468
U.S. 992, 1005 (1984). This rule allows a plaintiff to seek attorney’s fees where the work that is
performed on both fee-generating and non-fee-generating claims is combined in the same briefs
and motions. However, that 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 non-feegenerating claim is not subject to the award of attorney’s fees.
With that in mind, it is clear that all of the litigation after the Third Circuit issued its first
decision onSeptember 9, 2010, should not be subject to an award of attorney’s fees and costs.
From that point onward, there was no argument whatsoever about any civil rights claims. The
litigation was solely concerned with the preemption claims – the first petition for a writ of
certiorari to the Supreme Court, the second round of litigation after the Supreme Court granted
the writ and vacated the Third Circuit’s decision, and the second petition for writ of certiorari to
the Supreme Court. None of the civil rights issues were even remotely touched by the parties

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after September 9, 2010. Therefore, this Court should not award any of fees and costs generated
after September 9, 2010.
For many of the Plaintiffs’ attorneys, this represented all of the hours that they spent on
the case. It appears that they joined the litigation at that stage to participate in the cert. petitions
and related appellate review of the preemption issues exclusively. The entirety of Ken
Sugarman’s 24.1 hours occurred on or after September 9, 2010. Pl. Exh.2, Sugarman Time
Sheet. The same is true of Dror Ladin’s entire 34.9 hours. Pl. Exh. 2 Ladin Time Sheet.
Similarly, all of Foster Maer’s 94.3 hours occurred on or after September 9, 2010. Pl. Exh.5,
Maer Time Sheet. All of Ghita Schwarz’s 23.1 hours occurred on or after September 9, 2010.
Pl. Exh.5, Schwarz Time Sheet. The same is true of Jose Perez’s 16.8 hours. Pl. Exh.5, Perez
Time Sheet. The same is also true of Roberto Concepcion’s 15.9 hours. Pl. Exh.5, Concepcion
Time Sheet. The same is also true of Elizabeth Joynes’s 14.9 hours. Pl. Exh.5, Joynes Time
Sheet. The same is also true of Christina Iturralde’s 20.5 hours. Pl. Exh.5, Iturralde Time Sheet.
For many others, the hours spent after September 9, 2010 represented a large portion of
the hours that they spent on the case. In the case of Omar Jadwat, 479.7 of his 739.25 total hours
occurred after September 9, 2010. Pl. Exh.2, Jadwat Time Sheet; Pl. Am. Pet. 113 In the case of
Jennifer Chang Newell, 196.2 of her total 288.25 hours occurred after September 9, 2010. Pl.
Exh.2, Chang Newell Time Sheet; Pl. Am. Pet. 11. In the case of Jackson Chin, 28.0 of his 29.3
total hours occurred on or after September 9, 2010. Pl. Exh.5, Chin Time Sheet. In the case of
Witold Walczak, 339.5 of his total 1123.45 hours occurred after September 9, 2010. Pl. Exh. 3,

3

Although the Plaintiffs’ Amended Petition is not clear on this point, the City assumes that none of the hours
claimed in the Plaintiffs’ Amended Petition on page 11 are also counted in the Plaintiffs’ Original Petition on pages
22-23, and that all of the additional hours claimed in the Amended Petition occurred subsequently to the hours
claimed in the Original Petition. This would make sense, since the Plaintiffs add the total hours in the Amended
Petition to the total hours in the Original Petition to reach their grand total of $2,837,015 in fees claimed. The City
has assumed as much in calculating the total hours in this paragraph, adding the subtotals in each petition.
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Walczak Time Sheet; Pl. Am. Pet. 11. In the case of Thomas Wilkinson, 183.4 of his total 810.7
hours occurred after September 9, 2010. Pl. Exh.4, Wilkinson Time Sheet. None of these hours
were connected in any way with the Plaintiffs’ fee-generating issues.
It is important to recognize that the Plaintiffs cannot argue that their appellate litigation
after September 9, 2010 was necessary to preserve their partial victory on the fee-generating
issues in the district court. After the Third Circuit declined to rule on those issues on September
9, 2010, this Court’s ruling on the fee-generating issues remained completely intact and
unaffected by the subsequent appellate litigation over the preemption issues. Had the Supreme
Court issued the writ of certiorari, heard the case, and reversed the Third Circuit on the
preemption issues, the Plaintiffs’ victory on the two civil rights issues in this Court still would
have been preserved. At that point, the case would have been remanded back to the Third
Circuit for the consideration of the Defendant’s appeal of those civil rights claims. Since the feegenerating claims were entirely divested from, and unaffected by, the appellate litigation over the
preemption issues after September 9, 2010, it would be incorrect to count the fees and hours
involved in that appellate litigation toward the total award.

B.

The Plaintiffs’ Attorneys’Numbers of Hours Are Unreasonably Inflated by the Use
of Redundant Attorneys.
Fundamental to any lodestar calculation of attorney’s fees is reasonableness. As this

Court has summarized, “The lodestar is the product of the number of hours reasonably expended
by litigation, and the reasonable hourly rate.” J.S. v. Blue Mt. Sch. Dist., 2014 U.S. Dist. LEXIS
44732 (M.D. Pa. 2014) at *6. The billing of redundant hours is unreasonable. “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
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exclude those that are “excessive, redundant, or otherwise unnecessary.”’” Maldonado v.
Houstoun, 256 F.3d 181, 184 (3d Cir. 2001) (quoting Pub. Int. Research Grp of N.J., Inc. v.
Windall, 51 F.3d 1179, 1188 (3d Cir. 1995); Blue Mt. Sch. Dist., NO. 3:07-CV-00585, 2014 U.S.
Dist. LEXIS 44732 at *7 (M.D. Penn. Jan. 2, 2014). The Third Circuit has made clear that a
district court has an affirmative duty “to exclude from counsel’s fee request ‘hours that are
excessive, redundant or otherwise unnecessary....’” Holmes v. Millcreek Township Sch. Dist.,
205 F.3d 583, 595 (3d Cir. 2000) (citing Hensley, 461 U.S. at 434).
In their Amended Fee Petition, the Plaintiffs have taken redundancy to new levels.
During the entire litigation of this matter, the City was essentially represented by five attorneys.4
That was the appropriate number of attorneys for a case of this magnitude and complexity.
Meanwhile, the Plaintiffs utilized no fewer than 43 attorneys—more than eight times the number
used by the City – in litigating this case. They now ask for attorney’s fees to cover this
extraordinary crowd of attorneys.
It was apparent during the ten-day bench trial in Scranton in March 2007 that most of the
Plaintiffs’ attorneys were little more than spectators to the litigation. They sat in the public
seating area of the courtroom and ran the clock, accumulating thousands of hours while adding
virtually nothing to the litigation of the case. As this Court may recall, the leaders among the
Plaintiffs’ legion of attorneys attempted to give some of the others a symbolic level of
participation by allowing them to examine or cross-examine a single witness, rotating them in
front of the bar one at a time. But there were not enough witnesses to go around; the Plaintiffs’
4

Those attorneys were Kris Kobach, Harry Mahoney, Andrew Adair, and Carla Maresca. The
fifth attorney was initially Mike Hethmon of IRLI during the district court phase. Mr. Hethmon
was later replaced by Garrett Roe of IRLI during the appellate phases. The firm of attorneys
Mahoney, Adair, and Maresca did utilize paralegal assistance and a few junior attorneys to
perform some support work. Defendants do not contend that the paralegal work done for the
Plaintiffs is redundant or excessive.
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attorneys vastly outnumbered the witnesses in the case. Consequently, the attorney hours in the
Plaintiffs’ petition are grossly inflated by the redundancy among their attorneys. It appears that
many of the Plaintiffs’ attorneys regarded this litigation in part as a showcase wherein they could
display their commitment to their cause, make national headlines, and attract financial
contributions for their respective organizations.5 Although the Plaintiffs’ attorneys were
certainly entitled to publicize their involvement in the case and to use it for fundraising purposes,
they may not now demand that the taxpayers of the City pay for this redundancy.
This redundancy generated an astronomical total of hours spent on this litigation by the
Plaintiffs’ 43 attorneys. The total number of hours claimed by all of the Plaintiffs’ attorneys,
cumulatively, is 8,955. In contrast, the total number of hours spent on the matter by the City’s
attorneys was only approximately 4,553 – roughly half of the hours claimed by the Plaintiffs’
attorneys.6 Although the Defendant’s attorneys’ total number of hours certainly does not serve
as a legal cap on the number of hours that the Plaintiffs may claim, it does offer a useful
perspective – how much time the other side spent litigating the same bench trial, arguing the
same motions, briefing the same appeals, and briefing the same cert. petitions. With that amount

5

For example, PRLDEF boasted on its website that “During the trial, LatinoJustice PRLDEF’s
lawsuit repeatedly made the national news….” See
http://latinojustice.org/civil_rights/hazleton_story/.
6

The hours spent by the Defendant’s attorneys were as follows. Note that Mr. Roe substituted
for Mr. Hethmon on behalf of the Immigration Reform Law Institute during the appellate stage
of the litigation:
Kris Kobach – 973
Andrew Adair – 1,118
Carla Maresca – 859
Hank Mahoney – 453
Mike Hethmon/Garrett Roe – estimated to be 700 total, or less (their hours were not
recorded)
Junior attorneys supporting Mahoney, Adair and Maresca – 450
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of time as a benchmark, it iscertainly unreasonable for the Plaintiffs to now seek an award of fees
for double the number of hours spent by the Defendants.
Because there is so much redundancy among the 43 Plaintiffs’ attorneys seeking fees, and
because the records provided by the Plaintiffs do not provide enough detail to identify with
precision the redundancy in their work, it is difficult to determine what the exact number of
redundant hours is. The Defendant suggests that a fair way for this Court to discount for the
redundancy in the Plaintiffs’ hours would be to reduce the total number of hours for which the
Plaintiffs may be awarded attorney’s fees by 49% – reflecting the fact that the Defendants’
attorneys spent only 51% of the total hours claimed by the Plaintiffs’ attorneys. Although this is
a crude way to sort out the extraordinary redundancy in the 43-attorney team assembled by the
Plaintiffs, it is fair. As the Supreme Court has explained, the goal in awarding fees “is to do
rough justice, not to achieve auditing perfection.” Fox v. Vice, 131 S. Ct. 2205, 2216 (2011).
Therefore, the total number of hours for each of the Plaintiffs’ 43 attorneys should be cut by
49%.

C.

The Plaintiffs Assert Inflated and Unreasonable Billing Rates that Have Already
Been Rejected by this Court.
The Plaintiffs contend that they have presented to this court “appropriate prevailing rates

for fee awards in this District.” Pl. Am. Pet.7. However, they pointedly fail to mention that this
Court has reviewed fee petitions by the very same attorneys and determined that the appropriate
fees for those specific attorneys are half of what the Plaintiffs now claim.
The Plaintiffs claim that they are entitled to the following rates for their twelve most
expensive attorneys (who account for the lion’s share of the attorney’s fees sought):

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Thomas G. Wilkinson, Jr.
Witold Walczak
Foster Maer
Jackson Chin
Jose Perez
Richard Bellman
Raymond T. Letulle
Kenneth Sugarman
Barry H. Dyller
Omar Jadwat
Jennifer Chang Newell
Ghita Schwarz

$472
$460
$460
$460
$460
$450
$370
$350
$350
$335
$335
$335

Pl. Am. Pet. 11; Ex. 1 to Pl. Pet. 21-22. It is worth noting at this point that the hourly rates that
were actually charged to paying clients by the Defendant’s attorneys in this litigation do not
even come close the rates asserted by the Plaintiffs’ top twelve attorneys. The Defendant’s billed
rates were:
Kris W. Kobach
Harry G. Mahoney
Andrew B. Adair
Carla P. Maresca

$250
$210
$185
$185

The experience level and qualifications of the Defendant’s attorneys are certainly equivalent to
those of the Plaintiffs.7 And all of the Defendant’s attorneys but Kobach regularly charged those

7

• Kris Kobach was, at the time this litigation began, a Professor of Constitutional Law at UMKC
School of Law with 11 years of experience in practice or teaching. He was also a specialist in
immigration law who had served at the U.S. Department of Justice as Counsel to the Attorney
General and the Attorney General’s chief adviser on immigration law. He graduated from Yale
Law School in 1995 and served thereafter as a law clerk on the Tenth Circuit of the U.S. Court of
Appeals.
• Harry Mahoney was, at the time this litigation began, a litigator with 32 years of experience
and with particular expertise in representing municipalities in civil rights claims. He graduated
from Villanova Law School in 1974. See
http://www.dmvlawfirm.com/legalteam.php?action=view&id=8.
• Andrew Adair was, at the time this litigation began, a litigator with 11 years of experience and
particular expertise in representing municipalities in civil rights claims. He graduated from
Tulane Law School in 1993 and served thereafter as a law clerk on the Delaware Superior Court.
See http://www.dmvlawfirm.com/legalteam.php?action=view&id=13.
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rates in the same Middle District of Pennsylvania market.8 That is certainly relevant information
for this Court to consider.
But by far the greatest problem with the Plaintiffs’ asserted hourly rates is that this Court
has already rejected them in another case involving some of the same lawyers and similar
claims; and the Plaintiffs pointedly failed to inform this Court of that fact. Specifically, this
Court held in a case that occurred a year after the instant case (and that similarly involved
constitutional issues and immigration) that “Attorney Jadwat’s lodestar” should be “calculated at
one hundred eighty dollars ($180) per hour.” Buck v. Stankovic, No. 3:07-CV-0717, 2008 U.S.
Dist. LEXIS 65572 at *55, (M.D. Penn. Aug. 27, 2008). That is well below the $335 per hour
that Attorney Jadwat seeks in the Amended Petition in the instant case. Likewise, this Court held
that “Attorney Chang’s lodestar” should be “calculated at one hundred sixty dollars ($160) per
hour.” Id. at *56. That is less than half the rate of $335 per hour that Attorney Chang (now
Chang Newell) seeks in this case. In the Buck case, the plaintiffs claimed that these attorneys’
experience in the instant case made them better qualified to receive the rates they sought.
“Plaintiffs also cite the experience that some of their attorneys had gained in a recent case,
Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa. 2007), which likewise concerned the
intersection of constitutional issues and immigration law.” Id. at *11. By their own logic, if it
was their experience in Lozano that prepared them for Buck, then the lodestar rate that they are
awarded in Lozano should be less than the $180 and $160 per hour that they were awarded for

• Carla Maresca was, at the time this litigation began, a litigator with 11 years of experience and
with particular expertise in civil rights issues. She graduated from Villanova Law School in
1995. See http://www.dmvlawfirm.com/legalteam.php?action=view&id=1.
8

Kobach’s office is in Kansas City, Kansas, where fees are comparable to those in the Middle
District of Pennsylvania.
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subsequent work in Buck. However for the sake of ease of calculation, let us assume that the
Buck lodestar rates are appropriate in the instant case as well.
Assuming that the 43 Plaintiffs’ attorneys are being accurate and trustworthy in assessing
their own relative rates compared to one another, we can now calculate what the lodestar rates
should be for all 43 attorneys, based on this Court’s ruling in Buck. The $335 rate that Jadwat
claims is slightly less than double the $180 rate that this Court held he was actually entitled to a
year later. The $335 rate that Chang Newell claims is slightly more than double the $160 rate
that this Court held she was actually entitled to a year later. Therefore, it is accurate to say that
in their fee petitions in the instant case they have roughly doubled the fair lodestar rate that had
already been determined by this Court in Buck. If their relative rates compared to one another
are accurate, we can also say that all of the other 41 attorneys’ asserted hourly rate should be cut
in half. Stated differently, assuming that the Plaintiffs’ attorneys have accurately represented to
this Court that Wilkinson (who claims $472) is entitled to charge a rate that is 41% higher than
Chang Newell (who claims $335), then Wilkinson’s correct lodestar rate is actually 41% higher
than Chang Newell’s correct lodestar rate of $160. That number is $226 – roughly half of what
Wilkinson claims. Therefore, Defendants urge this Court to use Buck as the measuring stick in
calculating the lodestar in the instant case, cutting the appropriate lodestar rate for each attorney
in half. This Court has utilized this approach in the past, adopting the lodestar rate actually
awarded to the same attorney in a previous case. See Smith v. Borough of Dunmore, No. 3:05CV-1343, 2008 U.S. Dist. LEXIS 80450 at *21 (M.D. Penn. Oct. 9, 2008).
Doing so in the instant case yields a lodestar rate that is consistent with the rates of
opposing counsel and with the rates of the regional market. It is worth noting that if all of the
Plaintiffs’ asserted hourly rates are cut in half, then the rate range for the top seven attorneys for

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the Plaintiffs becomes $185 – $236. That is almost exactly the rate range for the four attorneys
for the Defendant who actually billed their fees to paying clients: $185 – $250. That is further
confirmation that the appropriate market rates for the Plaintiffs’ attorneys to be used in the
lodestar calculation should be half of what they now claim.
In addition, the calculation of lodestar rates by this Court in other cases during the same
time period reflects the fact that the $185 – $236 range is an accurate reflection of the regional
market rates. In the contemporaneous case of Lohman v. Duryea Borough, No. 3:05-CV-1423,
2008 U.S. Dist. LEXIS 57981 at *6-*8 (M.D. Penn. July 30, 2008), this Court determined that a
lodestar rate of $215 was appropriate. In the contemporaneous case of Borough of Dunmore,
2008 U.S. Dist. LEXIS 80450 at *21, this Court again determined that a lodestar rate of $215
was appropriate. In the contemporaneous case of Gilbert v. Synagro, 2008 U.S. Dist. LEXIS
98949 at *4 (M.D. Penn. Dec. 8, 2008), this Court found that billing rates of $225, $255, and
$300 were appropriate lodestar rates for the attorneys in that case.

D.

The Plaintiffs Prevailed only Partially Because the Private Cause of Action
Provisions and the Official English Provisions Remain in Place.
This Court possesses wide discretion in determining what a reasonable and appropriate

attorney’s fee award is, in any given case. One of the most important considerations is the
degree of overall success that the plaintiffs achieve. “Indeed, ‘the most critical factor’ in
determining the reasonableness of a fee award ‘is the degree of success obtained.’” Farrar v.
Hobby, 506 U.S. 103, 114 (1992) (quoting Hensley, 461 U.S. at 436). “In some circumstances,
even a plaintiff who formally ‘prevails’ under § 1988 should receive no attorney’s fees at all.” Id.
at 115. In the instant case, the Plaintiffs certainly did not achieve the “overwhelming” success
that they declare in their Amended Petition. Pl. Am. Pet. 5. On the contrary, as explained
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below, the Plaintiffs challenged four different mechanisms in the City’s ordinances. They
succeeded in achieving an injunction against only two of those four mechanisms. Their success
was therefore only partial, and this Court should accordingly adopt a low award amount.
As explained supra, the City’s ordinances at issue in this litigation contain essentially
four different mechanisms: (1) the employment provisions enforced by the City, (2) the
employment provisions enforced by a private cause of action held by displaced employees, (3)
the apartment rental provisions, and (4) the official English provisions. The Plaintiffs challenged
all four at the commencement of this litigation. However, they succeeded in knocking down
only two of the four. The employment provisions enforced by a private cause of action remain in
effect, and the Official English provisions remain in effect.
With respect to the private cause of action provisions, the Third Circuit held that the
Plaintiffs did not have standing to challenge them. Lozano, 620 F.3d at 187. That section of the
Ordinance remains a powerful disincentive for employers not to replace United States citizen and
authorized alien workers with unauthorized aliens. It also remains a powerful incentive for
employers to use the E-Verify Program, which provides a safe harbor against such cases brought
by discharged employees.
In their Amended Fee Petition, the Plaintiffs recognize that they have a problem and must
address this fact. Their response is a transparently feeble one: they argue that since no such
private enforcement action has been brought to date, the private cause of action has had “no
practical effect.” Pl. Am. Fee Pet. ¶ 17. The Plaintiffs’ argument is akin to claiming that
because no-one has yet been cited for disobeying the speed limit, the speed limit law has had no
practical effect. The City drafted the private cause of action provisions in a manner such that no
employer would want to trigger them. The provisions impose treble damages in order to deter

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any employer from discharging a U.S. citizen worker or authorized alien worker while
employing an unauthorized alien. The fact that no such action has yet been filed demonstrates
that the provisions are working. They are having their intended deterrent effect.
The private cause of action provisions are also a second intended effect. They include a
powerful incentive for employers to enroll in the E-Verify Program. By doing so, an employer
gains a safe harbor that provides the employer immunity from being sued. So far, a large
number of employers have signed up for E-Verify. As of this filing, the total number of
employers in Hazleton using E-Verify is 33, including 16 employers that employ over 100
workers, and two employers that employ over 500 workers.9 Here too, the private cause of
action provisions are achieving their intended effect; and that effect is significant. The Plaintiffs
are evidently unaware of these figures or unwilling to acknowledge them. These powerful
private cause of action provisions are an important achievement for the City, and they have
provided a strong incentive for employers to enroll in the E-Verify Program – something that the
Plaintiffs argued the City could not do. Indeed, the Plaintiff’s claim that the City could not, and
should not, induce employers to enroll in E-Verify was at the very core of the Plaintiff’s
preemption claims. But the City is doing so. E-Verify has become an important program in the
City of Hazleton in part because of the legal incentive created by the City, despite the fact that a
principal objective of the Plaintiffs’ litigation was to stop the City from pushing employers to
enroll in E-Verify. By losing with respect to the private cause of action provisions, the
Plaintiffs’ victory regarding other IIRAO provisions has become a hollow one. The Plaintiffs
have failed to achieved one of their chief objectives going into this litigation.

9

Information obtained from the U.S. Citizenship and Immigration Services website at
http://www.uscis.gov/e-verify/about-program/e-verify-employers-search-tool.
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The Official English provisions also remain in place. At some point in the early stages of
this litigation, the Plaintiffs apparently realized that they were not going to succeed in
challenging the Official English provisions. The Second Amended Complaintcontinued to
include extensive reference to the Official English Ordinance, citing it repeatedly as a basis for
several of the organizations’ standing, Second Am. Complt. ¶¶ 27-28, 30, 32, 35, and devoting
much of the Second Amended Complaint to describing its effects, Second Am. Complt. ¶¶ 8693. According to the Second Amended Complaint, “Hazleton, by the Mayor’s own admission,
has some eight thousand recent Latino immigrants whose primary fluency is in the Spanish
language.” Second Am. Complt. ¶ 90. However, by the time that the Plaintiffs began briefing
this Court prior to the hearing of March 2007, they had evidently decided to drop the Official
English provisions from their arguments and briefing.
It appears that the Plaintiffs gave up their challenge to the Official English provisions
because they realized their low probability of success on that claim. Twenty-two states have
official English policies in their state constitutions or statutes. Courts across the country,
including the Supreme Court, have sustained official English laws and policies against a variety
of challenges. See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001); Silva v. St. Anne Catholic
School, 595 F. Supp. 2d 1171 (D. Kan. 2009).10 The Official English provisions went into effect
and remain in effect today. The failure of the Plaintiffs to prevail against this mechanism in the
ordinances – a failure that they evidently foresaw – once again makes clear that any success they
achieved in this litigation was partial, at best.
10

In one exception to this trend, the Oklahoma Supreme Court ruled that an official English
initiative was invalid under specific provisions of the Oklahoma Constitution. In re Initiative
Petit.No. 366, 46 P.3d 123 (Okla. 2002). In so doing, the Court specifically stated that the
Oklahoma Constitution is more protective of freedom of speech than the First Amendment to the
United States Constitution is. Id. at 126. Consequently, this precedent would not have assisted
the Plaintiffs.
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In summary, there are a total of four legal mechanisms that were at issue in this litigation:
(1) City enforcement against offending employers, (2) City enforcement against offending
landlords, (3) private enforcement against offending employers, and (4) the Official English
Ordinance. Two of the four remain in place. Therefore, the Plaintiffs were successful in
challenging only half of the legal mechanisms at issue in this litigation. Any attorney’s fee
award should be discounted accordingly.

E.

The Plaintiffs are Not Entitled to Work on Claims that Did Not Succeed.
In determining the appropriate amount of attorney’s fees to award, a Court should reduce

the hours claimed by the number of hours “spent litigating claims on which the party did not
succeed and that were ‘distinct in all respects from’ claims on which the party did
succeed.” Institutionalized Juveniles v. Sec’y of Pub. Welfare, 758 F.2d 897, 919 (3d Cir. 1985)
(quoting Hensley, 461 U.S. at 440). Here, the Plaintiffs prevailed only on their preemption
claim, their due process claim, and § 1981 claim (and their police powers claim insofar as it this
Court viewed a victory on any civil rights claim as creating a derivative carve-out from the
City’s police powers). However, the Plaintiffs litigated fully nine causes of action before this
Court. They failed to prevail on five of those causes of action: (1) the Equal Protection Clause,
Sec. Am. Complt. ¶¶ 146-56; (2) the Fair Housing Act, id. at ¶¶ 157-64; (3) the Home Rule
Charter Law, id. at ¶¶ 173-87; (4) the Landlord and Tenant Act, id. at ¶¶ 146-56; and (5) privacy
rights protected by the United States Constitution and the Pennsylvania Constitution, id. at ¶¶
199-213. In summary, the plaintiffs did not prevail with respect to five of their nine claims.
These five claims were in no way dependent upon, or similar to, the claims on which the
plaintiffs succeeded. Indeed, they were distinct in all respects from the claims on which the

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Plaintiffs succeeded. For this reason as well, the success of the Plaintiffs in this litigation can
only be regarded as partial, at best. Time spent litigating these claims cannot be counted in the
lodestar calculation of awardable hours. Institutionalized Juveniles, 758 F.2d at 919.
Unfortunately, most of the attorneys’ time sheets provided in support of their Amended
Petition do not specify which claims the attorneys were working on. For example, attorney
Walczak included numerous entries that simply stated “legal research and writing” or “worked
on brief.” Pl. Exh.3, Walczak Time Sheet. Attorney Jadwat included multiple entries that
simply stated “draft CA3 brief” or “edit brief.” Pl. Exh.2, Jadwat Time Sheet. Where a fee
motion inadequately documents the hours claimed, the district court may deduct those hours.
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). This Court should therefore either
exercise its discretion to set an appropriately low award of attorney’s fees in this matter to reflect
the Plaintiffs’ failure regarding the majority or their claims, or specifically deduct those hours
recorded prior to September 9, 2010, (the period when all of the claims were still in play) that do
not specify the claim on which the attorney was working.

F.

Any Award of Fees and Costs Should be Extended Over Time Because the City is on
the Verge of Insolvency.
Finally and ironically, if this Court were to award the exorbitant sum of fees that the

Plaintiffs’ attorneys ask for, then the Plaintiffs might very well receive nothing. The City is in
severe financial distress and on the verge of bankruptcy under Pennsylvania Act 47 – a provision
of Pennsylvania State law providing for receivershipof bankrupt municipalities. The State has
already engaged in early intervention to help the City avoid bankruptcy; in 2011, the State
provided an early intervention grant so that the City could hire a consultant to review the City’s
departments and policies and recommend changes. This the City did. Among the austerity
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measures taken by the City was the sale of the City’s parks. However, the fiscal picture remains
bleak. As the attached 2013 Audit of the City shows, in calendar year 2013 the City’s expenses
exceeded the City’s revenues by $1,794,650. 2013 Audit at 4. The City continues to be unable
to raise enough revenue to meet its expenses, with massive deficits persisting in calendar year
2014. The principal reason that the City is not already bankrupt or in receivership is that they
City has received two very large loans – a refinancing of $7.0 million of debt in 2006, and an
additional $5.6 million loan in 2010.
An award of the full amount of fees and costs sought by the Plaintiffs, or even half of that
amount, in one lump sum would likely be the straw that breaks the camel’s back and drives the
City into bankruptcy and Act 47 receivership. Should that occur, because the Plaintiffs’
attorneys are not secured creditors, they would be unlikely to recover any attorney’s fees at all.
During the litigation of this case, the Plaintiffs’ attorneys brought claims ostensibly on
behalf of the employees, employers, tenants, landlords, and Latino residents of the City.
Ironically, if the Plaintiffs’ attorneys were to be awarded the redundant and inflated fees that they
seek, then the burden in the form of austerity measures under Act 47 receivership – increased
taxes, and/or radically reduced city services – would fall upon the very people the Plaintiffs’
attorneys claim to be seeking to help. The public interest, and the attorneys’ own interests, are
not served by the award of excessive, unreasonable, and redundant fees driving the City into
bankruptcy.
The Defendant therefore requests that any award of fees and costs in this matter be
extended over a period of years so that the amount payable by the City in any given year be no
greater than $100,000. Doing so well help ensure that the City remains fiscally solvent, and it

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will also ensure that the Plaintiffs’ attorneys themselves get paid by staving off Act 47
receivership.

IV. CONCLUSION
As has been explained above, because of the extreme redundancy in the Plaintiffs’
crowded team of attorneys, the lodestar hours asserted by the Plaintiffs should be reduced by
49%, distributed evenly among the 43 attorneys. In addition, the lodestar rate for each attorney
should be half of the claimed hour rate, based on the lodestar rates assigned by this Court in
Buck. Making these two adjustments reduces the attorney’s fees award to exactly 25.5%, of the
initial amount claimed, from $2,787,421 to $710,792. That amount should be cut in half again to
reflect the fact that two of the four ordinance mechanisms originally challenged by the Plaintiffs
remain in effect, and five of the Plaintiffs’ nine claims failed. Therefore the Plaintiffs achieved
only half of their litigation objectives. Therefore, the Defendant believes that the appropriate fee
award amount is $355,396, minus 25.5% of the claimed fees/hours that were spent on appellate
litigation concerning non-fee-generating preemption claims after September 9, 2010. See
specific calculations in Section III.A, supra. The Defendant does not contest the costs asserted
by the Plaintiffs that were incurred prior to September 9, 2010. However, any costs incurred
during the appellate litigation of purely preemption issues after September 9, 2010, should not be
awarded to the Plaintiffs. The Defendant further requests that any award amount be apportioned
over a period of years to ensure that the amount due in any fiscal year not exceed $100,000.

Respectfully submitted,

Dated: March 4, 2015

By:

s/ Kris W. Kobach
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KRIS W. KOBACH
Kobach Law, LLC
4701 N. 130th St.
Kansas City, KS 66109
Telephone: (913) 638-5567
Email: kkobach@gmail.com
Attorney for Defendant

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CERTIFICATE OF SERVICE

I, the undersigned, hereby certify that, on the 4th day of March, 2015, I electronically filed the
above and foregoing document using the CM/ECF system, which automatically sends notice and
a copy of the filing to all counsel of record.

By:

25

s/ Kris W. Kobach
KRIS W. KOBACH
Kobach Law, LLC
4701 N. 130th St.
Kansas City, KS 66109
Telephone: (913) 638-5567
Email: kkobach@gmail.com
Attorney for Defendant