UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF PENNSYLVANIA

_______________________________

:

HEATHER BUCK and

:

JOSE GUADELUPE

:

ARIAS-MARAVILLA,

:

: CIVIL ACTION

Plaintiffs,

: No. ___________

:

v.

:

:

DOROTHY STANKOVIC, Register : ELECTRONICALLY

Of Wills for Luzerne County,

:

FILED

(in her individual and official

:

capacities)

:

:

Defendant.

:

______________________________ :

VERIFIED COMPLAINT

INTRODUCTION

This action is brought on behalf of a United States citizen and a

citizen of Mexico who wish to marry. The Register of Wills of the County

of Luzerne has adopted, implemented and enforced a policy that requires

persons seeking to obtain a marriage license to prove their lawful presence

in the United States before their application for a marriage license will be

accepted. This policy directly interferes with plaintiffs’ fundamental right to marry and accordingly violates the United States Constitution. This litigation is brought pursuant to 42 U.S.C. § 1983. Plaintiffs seek declaratory and injunctive relief as well as compensatory damages and attorneys fees as provided under 42 U.S.C. § 1988.
PARTIES 1. Plaintiff Heather Buck (“Ms. Buck”) is a citizen of the United States and is currently a resident of the town of West Hazelton in Luzerne County in the Commonwealth of Pennsylvania. 2. Plaintiff Jose Guadalupe Arias-Maravilla (“Mr. Arias”) is a citizen of Mexico and is currently a resident of the town of West Hazelton in Luzerne County in the Commonwealth of Pennsylvania. 3. Defendant Dorothy Stankovic is the Register of Wills of Luzerne County and in that position has responsibility for, among other things, the issuance of marriage licenses. Defendant Stankovic maintains an office at Luzerne County Court House, Penn Place Annex, 20 N. Pennsylvania Street in Wilkes-Barre, Pennsylvania. Defendant Stankovic is named herein in both her personal and official capacities.
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4. Defendant Stankovic is a “person” as that term is defined in 42 U.S.C. § 1983 and at all relevant times has been acting under color of state law.
JURISDICTION AND VENUE 5. This Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1331 and 1343(3) and (4). This Court has supplemental jurisdiction over the state constitutional and statutory claims pursuant to 28 U.S.C. § 1367. Declaratory relief is authorized by 28 U.S.C. § 2201 and Federal Rule of Civil Procedure 57. Injunctive relief is authorized by Federal Rule of Civil Procedure 65. 6. This Court has personal jurisdiction over the defendant who is located in the Middle District of Pennsylvania. 7. Venue is proper in the Middle District of Pennsylvania pursuant to 28 U.S.C. § 1391(a) in that the defendant is subject to personal jurisdiction within the Middle District of Pennsylvania and the events that give rise to this action occurred within the Middle District of Pennsylvania. ISSUANCE OF MARRIAGE LICENSES IN PENNSYLVANIA 8. In Pennsylvania, no person may marry without a license. 23 PA. C. S.A. §§ 1103 and 1301(a).
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9. In Luzerne County, marriage licenses are issued by defendant Stankovic and by agents and employees operating under her authority and control.
10. Pennsylvania law sets forth the requirements for a properly completed application for a marriage license. 23 PA. C. S. A. § 1302(b) provides in relevant part:
(b) Contents.--The application shall contain the following: (1) The full name of the applicants.
(2) The occupation, birthplace, residence and age of the applicants. . .
(3) Whether the marriage contemplated is the first, second or other marriage of an applicant.
(4) A statement that neither of the applicants is afflicted with transmissible disease.
(5) The full name, residence, occupation and birthplace of the parents of each applicant, including the maiden name of the mother of each applicant.
11. 23 PA. C.S.A. § 1304 specifies certain restrictions on the issuance of a marriage license applicable to minors, incompetent persons, persons under the influence of drugs or alcohol, and persons who propose to marry a relative within certain degrees of consanguinity.
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12. Pennsylvania law also requires persons wishing to obtain a marriage license to present themselves in person for an oral examination under oath with respect to four issues:
(1) The legality of the contemplated marriage. (2) Any prior marriage or marriages and its or their dissolution. (3) The restrictions set forth in section 1304 (relating to restrictions on issuance of license). (4) All the information required to be furnished on the application for license as prepared and approved by the department. 23 PA. C.S.A.§ 1306. 13. Pennsylvania law further states that the person issuing the license “must be satisfied as to the identity of both of the applicants.” 23 PA. C.S.A. § 1301(A). 14. Both federal and Pennsylvania law recognize various forms of identification to establish identity, including valid passports issued by foreign countries. 15. Pennsylvania law commands, in relevant part, that “[t]he marriage license shall issue” if the application is properly completed and there is no legal objection to the marriage. 23 PA. C.S.A.§ 1307. (emphasis added).
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16. Pennsylvania law does not condition issuance of a marriage license upon proof of legal residency or any other proof of immigration status.
17. Defendant Stankovic’s office provides a worksheet for male and female marriage license applicants. Those worksheets reflect the requirements for a marriage licenses contained in the Pennsylvania Marriage Act. Copies of those work sheets are attached as Exhibit A.
PLAINITFFS’ INTENT TO MARRY 18. Plaintiffs have resided together in West Hazelton Pennsylvania since October, 2005. 19. In December 2006, plaintiffs had a baby boy. That child lives with the plaintiffs in West Hazelton where both plaintiffs are responsible for his care and nurturing. 20. Plaintiffs had intended to marry in preparation for the birth of their child. The child was born prematurely however, and their plans to marry had to be postponed. 21. Before being able to marry, however, in January 2007, Mr. Arias was taken into custody by local police officers when his car broke down. When the officers saw Mr. Arias walking along the road to a pay
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phone to call a tow truck, they stopped him and asked for identification. Mr. Arias presented his Mexican driver’s license. The police officers immediately inquired as to whether he was lawfully present in the United States. Mr. Arias refused to answer their questions on the ground that local police officers in Luzerne County are not authorized to enforce the immigration laws of the United States. The police officers took him into custody and turned him over to immigration officials. At no time was Mr. Arias charged with a crime.
22. Mr. Arias was then held for one week in a detention facility in Reading, Pennsylvania, thereafter he was transferred to an immigration detention facility in York County, Pennsylvania. He remained at the York facility for more than one month.
23. On March 6, 2007, Mr. Arias was brought before a United States Immigration Judge. Mr. Arias conceded that he had entered the United States without permission. Mr. Arias agreed to depart voluntarily from the United States. After Mr. Arias agreed to post a bond to which the government consented, the immigration judge granted Mr. Arias 60 days to arrange his personal affairs and ordered him to report to the United States embassy or to a United States consulate in Mexico on or before May 12, 2007.
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24. With only 60 days to order his affairs, Mr. Arias and Ms. Buck determined to marry before Mr. Arias had to leave the United States.
25. Although plaintiffs understand that their marriage will not entitled Mr. Arias to remain in the United States after May 12, 2007, they nonetheless are anxious to marry to regularize their relationship and to ensure that their child has all the legal protections afforded to the child of lawfully wed parents.
PLAINTIFFS’ ATTEMPTS TO OBTAIN A MARRIAGE LICENSE
26. On March 23, 2007, plaintiffs went to the office of District Justice Joseph Zola to inquire about the requirements for obtaining a marriage license.
27. Upon information and belief, District Justices’ office in Luzerne County are empowered to accept marriage license applications. With respect to this function, they operate as agents of and under the control of the defendant Stankovic.
28. Now and at all times relevant hereto, plaintiffs have been eligible to marry under Pennsylvania law because:
(a) Both plaintiffs are of full age; (b) Neither plaintiff is currently married;
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(c) Neither plaintiff has a transmissible disease; (d) Neither plaintiff has ever been adjudged incompetent; (e) Neither plaintiff was or is under the influence of alcohol or
drugs; (f) Plaintiffs are wholly unrelated by blood; (g) Plaintiffs have sufficient documentation to establish their
identities. 29. When plaintiffs arrived at the District Justice’s office and asked for the requirements for obtaining a marriage license, they were told by a woman working at the office that they would need birth certificates in English or translated into English, photo identification and social security numbers. 30. Ms. Buck explained that Mr. Arias was a citizen of Mexico and that he did not have a social security number. 31. The woman immediately asked about his immigration status. 32. Ms. Buck explained Mr. Arias’ situation, including that he was currently under order from a United States immigration judge to depart from the United States by May 12, 2007.
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33. The woman at the desk advised plaintiffs to come back with a translated copy of Mr. Arias’ birth certificate and his Mexican passport. She also advised them to bring Mr. Arias’ immigration papers with him.
34. Thinking that they would be able to make a full and complete application once they had Mr. Arias’ birth certificate translated from Spanish to English, Ms. Buck and Mr. Arias left the office intending to return after the weekend.
35. On Monday, March 26, 2007, Mr. Arias and Ms. Buck returned to the District Justice office with the translated birth certificate and other documents. This time, a different woman was working behind the desk.
36. When Mr. Arias and Ms. Buck attempted to file their application, the woman expressed her doubt that the application could be accepted. She stated that she had to call the office of defendant Stankovic in Wilkes Barre. She made the call, purportedly to that office. She spoke on the phone for a number of minutes.
37. When she hung up the phone, the woman told Ms. Buck that she would not accept the application because Mr. Arias could not prove his lawful presence in the United States. She stated that Ms. Buck and Mr.
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Arias would have to go to Wilkes Barre to the office of defendant Stankovic if they wished to pursue the matter.
38. Concerned that they would not be able to marry, Ms. Buck and Mr. Arias contacted their immigration attorney, Mr. Philippe Weisz.
39. On March 28, 2007, Mr. Weisz contacted defendant Stankovic’s office and asked for a description of the requirements for a marriage license. He was told both parties would need a birth certificate, a second form of identification, and proof of the dissolution of any prior marriage. Mr. Weisz then asked if foreign language birth certificates had to be translated. Upon hearing this, the woman on the phone then told him that any person not born in the United States would have to prove that he was lawfully present. When Mr. Weisz asked the woman what statute or regulation contained this requirement, she told him that he should speak to the attorney for the office.
40. Mr. Weisz was then transferred to Mr. Michael Hudacek, Jr. Mr. Hudacek clearly stated that it was the policy of defendant Stankovic to refuse applications for marriage licenses unless both parties could prove their lawful presence in the United States. When Mr. Weisz asked to be referred to the statutory or regulatory basis for such a requirement, Mr.
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Hudacek confirmed the policy and told Mr. Weisz that if he was not satisfied with it, he should “sue us.”
41. In a subsequent conversation on April 11, 2007 with plaintiffs’ attorneys, Mary Catherine Roper and John Grogan, Mr. Hudacek stated that defendant’s policy to refuse applications for marriage licenses unless both parties could prove their lawful presence in the United States was not in writing. Mr. Hudacek stated that the policy does not impose a requirement that particular identifying documents be produced. Rather, Mr. Hudacek stated that the policy was to ascertain whether applicants for marriage licenses were “illegally” present the United States in the view of defendant’s office regardless of reliability of identification documents produced.
42. Convinced that the policy adopted by defendant Stankovic was contrary to Pennsylvania law and violated both the United States and Pennsylvania constitutions, plaintiffs determined to apply one last time before seeking legal redress.
43. On April 17, 2007, plaintiffs went directly to the office of defendant Stankovic in Wilkes-Barre to make another attempt to obtain a marriage license. They brought with them their birth certificates, photo
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identification for Ms. Buck and Mr. Arias’ current Mexican passport in
addition to Mr. Arias’ immigration papers and the requisite fee.
44. They were met by Mr. Don Williams, who identified himself
as the Deputy Register of Wills for Luzerne County. Mr. Williams leafed
through Mr. Arias’ passport, then stated that he would not accept their
application for a marriage licenses because there was no visa in the
passport, which Mr. Williams took to mean that Mr. Arias was “illegally in
the country.” He refused to review the immigration judge’s order showing
that Mr. Arias had to leave the country by May 12, 2007. Mr. Williams
stated that his instructions from defendant Stankovic were to deny
plaintiffs’ application if they reapplied.
45. When he was asked if there was a written policy, Mr.
Williams produced a photocopy of an index card, which he gave to
plaintiffs, and which reads as follows:
I had a question from George Warden that I responded to with a written email opinion. I think it would be good to circulate that opinion to other Clerks now. George had two foreign nationals request a Marriage License. To identify themselves, they presented their foreign Passports and their Visas. Their Passports were valid, but their Visas had expired. Since the Visas had expired they were in the country illegally.
I advised George NOT to issue a marriage license to these foreign nationals. I rendered a written opinion via email that the Clerk should not issue a marriage license to foreign nationals
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who were in the country illegally. I further advised that INS should be informed that these people had requested a marriage license and that their Visas had expired.
It is perfectly proper to issue a marriage license to foreign nationals as long as they are in the country legally. Evidence of being in the country legally would be the production of a valid Passport and a valid Visa or a Green Card.
The document given to the plaintiffs is attached hereto as Exhibit B. 46. As a direct result of the policy adopted, implemented and
enforced by defendant Stankovic, plaintiffs have been unable to marry. 47. Mr. Arias must report to a United States embassy or consulate
in Mexico on or before May 12, 2007, in order to abide by the immigration judge’s order to which he is subject.
48. If Ms. Buck and Mr. Arias are not permitted to marry before he is forced to depart for Mexico, they will either have to forgo their right to marry or seek to marry in Mexico, in which case they will not be able to marry in their Church as they desire. Nor would they be able to marry in the community in which they live, but would be required to marry 3000 miles from Ms. Buck’s family and friends and from the grandparents of her child.
49. If he is unable to marry Ms. Buck before he is compelled to leave for Mexico, Mr. Arias will depart the country leaving his child
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without the legal, social, spiritual and psychological benefits of the lawful marriage of his parents.
50. Plaintiffs will suffer irreparable harm by having their fundamental right to marry denied by the defendant’s policy.
51. Upon information and belief, plaintiffs cannot easily obtain a marriage license in another county because policies similar to that of defendant Stankovic are in effect in most of the other counties in the Commonwealth of Pennsylvania. The same requirements have been reported to be in effect in Lackawanna, Wyoming and Monroe Counties. In addition, foreign nationals without proof of legal residence in the United States have reportedly been denied licenses to marry in Lackawanna, Carbon, Allegheny, Delaware and Philadelphia Counties.
52. Injunctive relief is necessary to ensure that Ms. Buck and Mr. Arias are able to marry before Mr. Arias is compelled to leave for Mexico and to avoid the irreparable harm that will be visited on them if they are not able to marry before his departure.
FIRST CAUSE OF ACTION (SUBSTANTIVE DUE PROCESS) 53. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as though set forth at length herein.
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54. The policy adopted by defendant Stankovic requiring foreign citizens to prove lawful presence in the United States before their application for a marriage license will be accepted substantially and directly interferes with the plaintiffs’ fundamental right to marry.
55. The policy adopted by defendant Stankovic is unjustified by any legitimate state governmental purpose.
56. The policy adopted by defendant Stankovic violates the plaintiffs’ constitutional right to due process of law under the Fourteenth Amendment to the United States Constitution.
SECOND CAUSE OF ACTION (EQUAL PROTECTION) 57. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as though set forth at length herein. 58. The policy adopted, implemented and enforced by defendant Stankovic to require persons applying for a marriage license to prove their lawful presence in the United States as a condition of obtaining such a license denies persons who cannot so prove or who are unable to prove their lawful presence to the satisfaction of defendant Stankovic and/or her agents and employees of the equal protection of the laws in that it deprives them of a fundamental legal right, the right to marry, by subjecting them to a legal requirement not imposed on other persons including United States citizens
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as well as aliens who are and who can prove that they are lawfully present in the United States.
59. The policy adopted, implemented and enforced by defendant Stankovic to require persons applying for a marriage license to prove their lawful presence in the United States as a condition of obtaining such a license denies Ms. Buck her right to the equal protection of the laws in that it treats her differently than other United States citizens who wish to marry merely because she wishes to marry an individual who is not or cannot prove that he is lawfully present in the United States.
60. The policy adopted, implemented and enforced by defendant Stankovic to require persons applying for a marriage license to prove their lawful presence in the United States as a condition of obtaining such a license denies Mr. Arias his right to the equal protection of the laws in that it treats him differently with respect to the fundamental right to marry than other aliens who are or who can prove that they are lawfully present in the United States.
61. The policy adopted, implemented and enforced by defendant Stankovic to require persons applying for a marriage license to prove their lawful presence in the United States as a condition of obtaining such a license serves no compelling state-governmental interest.
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62. The policy adopted by defendant Stankovic violates the plaintiffs’ constitutional right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution.
THIRD CAUSE OF ACTION (SUPREMACY CLAUSE) 63. Plaintiffs incorporate by reference the allegations of the preceding paragraphs as though set forth at length herein. 64. Article VI, Section 2, of the United States Constitution provides: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land, and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary not withstanding. 65. The Supremacy Clause mandates that Federal law preempts any state regulation of any area over which Congress has expressly or impliedly exercised exclusive authority or which is constitutionally reserved to the Federal government. 66. The powers to regulate immigration and the foreign affairs of the United States are exclusively powers of the Federal government. The immigration laws of the United States do not bar persons who are not
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lawfully present in the United States from marrying. In fact, in certain situations, the immigration laws of the United States explicitly provide for it.
67. The policy adopted and enforced by defendant Stankovic to require persons applying for a marriage license to prove their lawful presence in the United States impermissibly regulates immigration and the incidents thereof.
68. The policy usurps the Federal government’s exclusive power over immigration and naturalization and its power to regulate the foreign affairs of the United States.
69. The policy both empowers and imposes the obligation to assess an individual’s immigration status on persons who have no particular knowledge or training to do so.
70. The policy violates the Supremacy Clause of the United States Constitution.
PRAYER FOR RELIEF WHEREFORE, in light of the foregoing, Plaintiffs respectfully request the following: (a) a temporary restraining order and/or a preliminary injunction
pursuant to Federal Rule of Civil Procedure 65 prohibiting
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defendant Stankovic from further implementing or enforcing the policy to require persons applying for a marriage license to prove their lawful presence in the United States as a condition of obtaining such a license or requiring her agents and employees from doing so; (b) a declaratory judgment pursuant to 28 U.S.C. §§ 2201 and 2202 and 42 U.S.C. § 1983 declaring the policy adopted and enforced by defendant Stankovic to require proof of lawful presence in the United States as a condition for the acceptance of an application for a marriage license to be void because it violates Due Process Clause and the Equal Protection Clauses of the Fourteenth Amendment, and the Supremacy Clause of the United States Constitution; (c) damages against defendant Stankovic for violating plaintiffs’ rights under the United States Constitution, the Pennsylvania Constitution, and the law of Pennsylvania; (d) an order awarding the Plaintiffs the costs incurred in this litigation including attorney’s fees pursuant to 42 U.S.C. § 1988; and (e) such other relief as the Court deems just and proper.
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Respectfully submitted,
/s/ John J. Grogan JOHN J. GROGAN* PA ID No. 72443 EDWARD DIVER* PA ID No. 85011 Langer & Grogan, P.C. The Bell Atlantic Tower 1717 Arch Street Suite 4130 Philadelphia, Pa. 19103 215.320-5662 Tel. 215.320.5703 Fax. jgrogan@langergrogan.com
/s/ Mary Catherine Roper MARY CATHERINE ROPER PA ID No. 71107 American Civil Liberties Union Of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106 Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org
WITOLD J. WALCZAK PA ID No. 62976 American Civil Liberties Union Of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Tel.: (412) 681-7864 Fax: (412) 681-8707 vwalczak@aclupgh.org
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OMAR C. JADWAT* American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org LUCAS GUTTENTAG* JENNIFER C. CHANG* American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org lguttentag@aclu.org *Admission pro hac vice anticipated
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 Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 1 of 18

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

HEATHER BUCK and JOSE GUADELUPE ARIAS-MARAVILLA,
Plaintiffs,
v.
DOROTHY STANKOVIC, Register of Wills for Luzerne County (in her individual and official capacities),
Defendant.

CIVIL ACTION NO. 3:07-CV-0717 (JUDGE CAPUTO)

MEMORANDUM Presently before the Court is Plaintiffs Heather Buck and Jose Guadelupe AriasMaravilla’s Motion for Temporary Restraining Order and/or Preliminary Injunction prohibiting Defendant Dorothy Stankovic, Register of Wills for Luzerne County, her agents and employees, from requiring Plaintiff Arias to prove his lawful presence in the United States as a condition of obtaining a marriage license. (Doc. 3.) A hearing was held on Thursday, April 26, 2007, supplemental briefs were filed and Plaintiffs’ motion is ripe for disposition. For the reasons set forth below, Plaintiffs’ motion will be granted. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1343(a), as well as 42 U.S.C. § 1983. The question before me is whether Defendant can, by prescribing a process for identifying an applicant for a marriage license, deny an undocumented alien and his citizen fiancé a marriage license. Defendant is charged with the duty of issuing marriage licenses for the Commonwealth of Pennsylvania in the County of Luzerne. Defendant fashioned a policy of requiring: (1) photo identification; (2) a birth certificate, which, if in a

Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 2 of 18
foreign language, must be accompanied by a certified translation; (3) a divorce decree if one of the applicants was previously married; and (4) fifty dollars ($50.00). With respect to the photo identification, if the applicant is not a United States citizen, Defendant requires that the applicant, if a permanent resident, present his United States Permanent Resident Card, also known as a “Green Card”, see Wikipedia, The Free Encyclopedia, “Greencard”, http://en.wikipedia.org/wiki/Greencard (last visited May 1, 2007), or, in the case of a foreign national like Mr. Arias, the applicant must present his foreign passport with a visa. “A visa is a document issued by a country giving an individual permission to formally request entrance to the country during a given period of time and for certain purposes and most always stamped or glued inside of a passport.” Wikipedia, supra, “Visa (document)”, http://en.wikipedia.org/wiki/Visa_%28document%29. It is the requirement that a non-citizen show proof of his lawful presence in the United States that is called into question by this case because the requirement effectively denies a marriage license to any undocumented alien, since only non-citizens in the United States legally have a visa or Green Card.
Plaintiff Heather Buck is a United States citizen. Plaintiff Jose Guadelupe AriasMaravilla is a citizen of Mexico who entered the United States without authorization. Since October 2005, Ms. Buck and Mr. Arias have lived together in their home in West Hazleton, Pennsylvania. On December 21, 2006, Plaintiffs had a son, Xavier Jose Arias.
On Tuesday, April 17, 2007, Plaintiffs went to Defendant’s office in Wilkes-Barre, Pennsylvania to obtain a marriage license. Plaintiffs spoke with Deputy Register of Wills, Donald Williamson. Mr. Arias presented his birth certificate, accompanied by a certified English translation, his Mexican passport, and documents from his immigration
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Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 3 of 18
proceedings before Immigration Judge Walter A. Durling, among which was an order granting Mr. Arias’ application for voluntary departure until May 12, 2007. Mr. Williamson noted that he was satisfied with Mr. Arias’ photo on his Mexican passport. However, because the passport did not contain a visa evidencing Mr. Arias’ lawful presence in the United States, Mr. Williamson denied Plaintiffs’ request for a marriage license. In so doing, Mr. Williamson refused to look at the documents from Mr. Arias’ immigration proceeding.
LEGAL STANDARD In order to grant a motion for a preliminary injunction, a district court must address the following four factors: (1) whether the movant has shown a reasonable probability of success on the merits; (2) whether the movant will be irreparably harmed by denial of the relief; (3) whether granting relief will result in even greater harm to the nonmoving party; and (4) whether granting the preliminary relief will be in the public interest. A.C.L.U. v. Ashcroft, 322 F.3d 240, 250 (3d Cir. 2003).
DISCUSSION I. Abstention
As an initial matter, Defendant asserts that the Court should abstain from adjudicating Plaintiffs’ case, arguing that an uncertain issue of state law exists as to the interpretation of 23 PA. CONS. STAT. ANN. § 1301(c), which provides that “[p]rior to issuance of the [marriage] license, the person issuing the license must be satisfied as to the identity of both of the applicants.” Specifically, Defendant argues that the provision leaves unclear what documents are needed in order for a marriage license applicant to
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Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 4 of 18
satisfactorily establish his identity. Defendant contends that this uncertain issue of state law is amenable to state court interpretation, noting that the Pennsylvania Marriage Law, 23 PA. CONS. STAT. ANN. § 1308, provides for judicial review by the Orphans Court in cases where a marriage license is refused. Adjudication by the Orphans Court would potentially narrow the issues or even obviate the need for this Court to decide Plaintiffs’ constitutional claims. Defendant also avers that this Court’s erroneous construction of section 1301(c) would disrupt important state policy related to the social relation of marriage.
A. Legal Standard Federal courts generally lack the authority to abstain from exercising jurisdiction that has been conferred. See New Orleans Pub. Serv. v. New Orleans, 491 U.S. 350, 358 (1989). “Underlying [this] assertion[ ] is the undisputed constitutional principle that Congress, and not the Judiciary, defines the scope of federal jurisdiction within the constitutionally permissible bounds.” Id. “Nonetheless, because federal courts have discretion in determining whether to grant certain types of relief, abstention is appropriate in a few carefully defined situations.” Gwynedd Props. v. Lower Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir. 1992). Abstention, however, “is the exception, not the rule.” Colorado River Water Conservation District v. United States, 424 U.S. 800, 813 (1976). Abstention is “an extraordinary and narrow exception . . . [and is appropriate] only in the exceptional circumstances where the order to the parties to repair to the state court would clearly serve an important countervailing interest.” County of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89 (1959). Not only is abstention rarely proper, but
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Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 5 of 18
abstention “is not an automatic rule applied whenever a federal court is faced with a doubtful issue of state law; it rather involves a discretionary exercise of a court’s equity powers.” Baggett v. Bullitt, 377 U.S. 360, 375 (1964). “Ambiguity in state law will not, standing alone, require abstention.” Id.
Abstention under Railroad Commission of Texas v. Pullman Co., 312 U.S. 496 (1941), is appropriate only “when the plaintiff properly invokes the federal jurisdiction in the first instance and the federal court temporarily abstains from exercising its jurisdiction pending the state court decision on a state law question.” Ivy Club v. Edwards, 943 F.2d 270, 280 (3d Cir. 1991). “[A]bstention under Pullman merely postpones the exercise of federal jurisdiction.” Allen v. McCurry, 449 U.S. 90, 101 n. 17 (1980). The purpose of Pullman abstention is to avoid (1) unnecessary constitutional pronouncements that could ultimately be displaced by a state court adjudication of state law; and (2) undue influence with state programs and policies. Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127, 149 (3d Cir. 2000) (citation omitted).
Pullman abstention is appropriate when “a federal court is presented with both a federal constitutional issue and an unsettled issue of state law whose resolution might narrow or eliminate the federal constitutional question.” Pullman, 312 U.S. at 500 (1941). Three “special circumstances” must exist for a federal court to apply Pullman abstention: (1) uncertain issues of state law underlying the federal constitutional claims brought in federal court; (2) state law issues amenable to a state court interpretation that would obviate the need for, or substantially narrow, the scope of adjudication of the constitutional claims; and (3) a federal court’s erroneous construction of state law would
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be disruptive of important state policies. Chez Sez III Corp. v. Twp. of Union, 945 F.2d 628, 631 (3d Cir. 1991).
Even if all three special circumstances are present, the Court retains the discretion whether or not to abstain. As such, discretionary factors, such as (1) the availability of an adequate state remedy, (2) the length of time the litigation has been pending, and (3) the impact of delay to the litigants, should be considered in order to determine whether abstention is consistent with equity. Id. at 631-33. The party urging abstention “bears a heavy burden of persuasion.” Synagro-WWT, Inc. v. Rush Twp., 204 F. Supp. 2d 827, 835 (M.D. Pa. 2002).
B. Analysis Defendant has not persuaded the Court that abstention is appropriate. While it is true that section 1301(c) has never been given judicial construction, a factor which would ordinarily favor abstention, the United States Supreme Court has made clear that not every case that potentially involves an uninterpreted state statute constitutes a proper case for abstention. Procunier v. Martinez, 416 U.S. 396, 401 (1974), overruled in part on other grounds, Thornburgh v. Abbott, 490 U.S. 401 (1989). Defendant essentially argues that section 1301(c), which requires that “the person issuing the license must be satisfied as to the identity of both of the applicants,” is so vague that the Court should allow the Orphans Court the opportunity to determine what is required of a marriage applicant in order to prove his identity. However, such a circumstance does not support the invocation of the abstention doctrine because, while this issue of state law may be uncertain, it cannot fairly be said to underlie or control this case. Rather, it is Defendant’s policy of requiring that foreign nationals present a passport and current visa in order to obtain a marriage license, not section 1301(c), that
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Plaintiffs challenge. Plaintiffs do not challenge Defendant’s policy as violative of section 1301(c) or the Pennsylvania Constitution, but rather the United States Constitution. As such, the right alleged is “plainly federal in origin and nature.” McNeese v. Board of Education for Community Unit School District, 187, Cahokia, Ill., 373 U.S. 668, 674 (1963). The federal right is not in any way “entangled in a skein of state law that must be untangled before the federal case can proceed. For [Plaintiffs] assert that [Defendant] ha[s] been and [is] depriving them of rights protected by the Fourteenth Amendment. It is immaterial whether [Defendant’s] conduct is legal or illegal as a matter of state law.” Id. Accordingly, Plaintiffs’ claims are entitled to be adjudicated in the federal courts. Abstention is therefore inappropriate.
Moreover, even assuming all three special circumstances were present, the Court would nevertheless adjudicate Plaintiffs’ claims. In order for Mr. Arias to report to a United States Embassy or Consulate in Mexico by May 12, 2007, he must begin his return to Mexico by May 7, 2007, less than one week from now. As such, the delay that would necessarily accompany the Court’s decision to abstain from adjudicating Plaintiffs’ claims would bring significant harm to Plaintiffs. Abstention, therefore, is not consistent with equity.
Accordingly, the Court will not abstain from adjudicating the merits of Plaintiffs’ constitutional claims. II. Reasonable Probability of Success on the Merits
A. Due Process & Equal Protection 1. Plaintiffs possess a fundamental right to marry
Ms. Buck, as a United States citizen, possesses a fundamental right to marry. Zablocki v. Redhail, 434 U.S. 374, 386 (1978) (reaffirming the fundamental character of
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the right to marry); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (the right “to marry, establish a home and bring up children” is a central part of the liberty protected by the Due Process Clause); Escobar v. I.N.S., 896 F.2d 564, 569 (D.C. Cir. 1990) (holding that section 5 of the Immigration Marriage Fraud Amendments of 1986, 8 U.S.C. §§ 1154(h), 1255(e), which required that an alien who married a United States citizen during the pendency of deportation proceedings reside outside the United States for two years before a petition predicated on immediate relative status would be considered, violated the citizen spouse’s Fifth Amendment right to due process).
There is also ample authority to support the conclusion that Mr. Arias, an undocumented alien, possesses the same fundamental right. See Theck v. Warden, I.N.S., 22 F. Supp. 2d 1117, 1122 (C.D. Cal. 1998) (holding that an excludable alien had a fundamental constitutional right to marry, reasoning that “[a]s a general matter, persons within the jurisdiction of the United States should be considered to be protected by the Constitution, unless it has been expressly held otherwise”); Manwani v. U.S. Department of Justice, 736 F. Supp. 1367, 1382 (W.D.N.C. 1990) (holding that section 5 of the Immigration Marriage Fraud Amendments of 1986, implicated the constitutionallyprotected interests of the alien spouse); Azizi v. Thornburgh, 908 F.2d 1130, 1133 (2d Cir. 1990) (recognizing alien and citizen spouse’s fundamental right to marry, but nevertheless upholding section 5 of the Immigration Marriage Fraud Amendments of 1986, because of Congress’ near complete power over matters of immigration); Smith v. I.N.S., 684 F. Supp. 1113, 1116 (D. Mass. 1988) (same); see also Plyler v. Doe, 457 U.S. 202, 210, 223 (1982) (declining to treat undocumented aliens as a suspect class because “their presence in this country in violation of federal law is not a “constitutional irrelevancy,” but nevertheless holding that “[a]liens, even aliens whose presence in this
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country is unlawful, have long been recognized as ‘persons’ guaranteed due process of law by the Fifth and Fourteenth Amendments”); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“The Fifth Amendment . . . protects every [alien within the jurisdiction of the United States] from deprivation of life, liberty, or property without due process of law. . . . Even one whose presence in this country is unlawful, involuntary, or transitory, is entitled to that constitutional protection”); In re Alien Children Education Litigation, 501 F. Supp. 544, 570 (S.D. Tex. 1980) (holding that “the equal protection clause protects undocumented aliens because they are ‘persons within the jurisdiction’ of the state. State discrimination against illegal aliens is not necessarily permissible, and when a fundamental right is infringed by that discrimination the state must provide a compelling justification”).
2. Defendant’s Policy is Subject to Strict Scrutiny In Zablocki v. Redhail, the United States Supreme Court dealt with a constitutional challenge to a Wisconsin statute which provided that any resident having minor children not in his custody and which he is under an obligation to support by any court order or judgment may not marry without court approval. 434 U.S. 374, 375 (1978). The statute further specified that court permission could not be granted unless the marriage applicant proved that he was in compliance with his child support obligation and that the children covered by the support order were not then and were not likely thereafter to become public charges. Id. After reaffirming the fundamental character of the right to marry, Id. at 386, the Court stated that “reasonable regulations that do not significantly interfere with decisions to enter into the marital relationship may legitimately be imposed.” Id. at 387. However, the Court concluded that the Wisconsin statute was not such a reasonable regulation, as
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it “clearly d[id] interfere directly and substantially with the right to marry.” Id. at 387. Rather, “[w]hen a statutory classification significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests.” Id. at 388; see Plyler, 457 U.S. at 217 (a classification that affects the exercise of a fundamental right must employ means that are “precisely tailored to serve a compelling governmental interest”).
The Court explained that the statute “absolutely prevented” from getting married those applicants who could not obtain the necessary court approval, either because they lacked the financial means to meet their child support obligations or could not prove that their children would not become public charges. Id. at 387. Moreover, the Court noted that “[m]any others, able in theory to satisfy the statute’s requirements, will be sufficiently burdened by having to [obtain court approval] that they will in effect be coerced into forgoing their right to marry. And even those who can be persuaded to meet the statute’s requirements suffer a serious intrusion into their freedom of choice in an area in which we have held such freedom to be fundamental.” Id.
Here, Defendant’s policy, of requiring foreign nationals to prove their lawful presence in the United States as a condition precedent for obtaining a marriage license, significantly interferes with Plaintiffs’ exercise of their fundamental right to marry. Indeed, Defendant’s policy: (1) absolutely prevents undocumented aliens, such as Mr. Arias, from getting married; and (2) absolutely prevents United States citizens, such as Ms. Buck, from marrying undocumented aliens. As such, Defendant’s policy “place[s] a direct legal
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obstacle in the path of persons desiring to get married.” See id. at 387 n.12. Such a policy is thus subject to strict scrutiny.
3. Defendant’s Policy Likely Fails Strict Scrutiny In Zablocki, the Court then held that the Wisconsin statute broadly and unnecessarily impinged on the fundamental right to marry, and therefore could not be sustained. Id. at 388. First, the Court did not find a clear connection between Wisconsin’s interest in child support collection and the statute’s requirements. Id. at 389. “[W]ith respect to individuals who [we]re unable to meet the statutory requirements, the statute merely prevent[ed] the applicant from getting married, without delivering any money at all into the hands of the applicant’s prior children.” Id. The Court also noted that Wisconsin had “numerous other means for exacting compliance with support obligations, [such as wage assignments, civil contempt proceedings, and criminal penalties,] means that [we]re at least as effective as the instant statute’s and yet d[id] not impinge upon the right to marry.” Id. at 389-90. Second, the Court found the statute to be both over and under inclusive with respect to its protecting the ability of marriage applicants to meet support obligations to prior children by preventing applicants from incurring new child support obligations. Id. at 390. The statute was underinclusive because it did not limit in any way new financial commitments by the applicant other than those arising out of the contemplated marriage. Id. Indeed, while the statute could prevent the contemplated marriage, it would not prevent the applicant from incurring a support obligation to any children born out of wedlock. Id. The statute was also overinclusive in that a new spouse could actually better the applicant’s financial situation by contributing income from a job
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or otherwise, thus preventing marriage applicants from improving their ability to satisfy their prior support obligations. Id.
Accordingly, the Court concluded that the Wisconsin statute was not closely tailored to effectuate sufficiently important state interests.
Here, Defendant has articulated two state interests she considers sufficiently important to justify the enforcement of her policy. First, Defendant contends that the only way to identify a foreign national is by requiring a passport with a current visa. Defendant reasons that the visa requirement is that possession of such a document indicates review and approval by the federal immigration authorities, thereby supporting the authenticity of the foreign passport and therefore the identity of the marriage applicant. Second, at oral argument and in her brief, Defendant argues that she has a compelling interest in preventing marriage fraud as defined under federal immigration law, 8 U.S.C. § 1325(c) (“Any individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws shall be imprisoned for not more than 5 years, or fined not more than $250,000, or both”). The Court will address these interests in turn.
i. Identification While the concern over the authenticity of foreign passports may be well-placed, the effect of the requirement of the visa ipso facto operates to deny an undocumented alien a marriage license and, to wit, his fundamental right to marry as well as the fundamental right of his citizen fiancé to marry. Like the statute in Zablocki, Defendant’s policy lacks a clear connection to the interests advanced by Defendant. Defendant’s policy rests on the rationale that the issuance of a current visa indicates review by federal
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Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 13 of 18
immigration authorities, thereby supporting the authenticity of the foreign passport and the identity of the applicant. However, in the Court’s opinion, if one has the wherewithal to forge a passport, one can just as easily forge a visa.
Moreover, there are other means by which Defendant must satisfy herself as to the identity of a foreign applicant than the requirement of a visa. As noted, such a requirement automatically denies the fundamental rights of an undocumented alien and his citizen fiancé to marry. Defendant can adopt a policy that does not require this denial. For example, Mr. Williamson testified that the passports which are most often presented to verify the identity of marriage applicants are Irish, Russian, Polish and Mexican. (TRO Hr’g Tr. 16.) While testimony indicated that Defendant’s clerks are unfamiliar with foreign passports, it seems reasonable that they could become familiar with those passports which are most often encountered, so that when there is no visa, Defendant could still become reasonably satisfied as to the passport’s authenticity and the applicant’s identity.
It is not the Court’s function to advise Defendant of the various means by which identity can be established. It is sufficient to note that the method which denies an undocumented alien a marriage license because he is an undocumented alien cannot be used.
ii. Preventing Marriage Fraud In argument, counsel for Defendant asserted that the challenged policy served the sufficiently important state interest of preventing marriage fraud as defined under 8 U.S.C. § 1325(c). However, Defendant testified that, in adopting the policy of requiring a passport plus a current visa, she was not attempting to ensure that foreign national marriage applicants were not evading federal immigration laws. (TRO Hr’g Tr. 34-35.)
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Defendant also testified that the issue of whether Plaintiffs’ marriage would be considered fraudulent under federal immigration laws was not her concern. (Id.) Therefore, this is not a sufficiently important state interest sought to be furthered by Defendant’s policy.
The Court likewise rejects the argument advanced by counsel for Defendant, and testified to by Mr. Cleaver (see TRO Hr’g Tr. 72-73), that Defendant’s policy was needed in order to avoid being prosecuted by the federal government for aiding and abetting marriage fraud. Again, Defendant testified that the fear of being prosecuted for aiding and abetting marriage fraud did not concern her. (TRO Hr’g Tr. 35, 54, 58.) Consequently, this does not constitute a sufficiently important state interest.
The final argument advanced by defense counsel was that, since Mr. Arias wants to marry Ms. Buck so as to improve his chances of reentering the United States, he is guilty of marriage fraud. As such, defense counsel argued that the Court should not countenance Plaintiffs’ motion for injunctive relief as a matter of equity. The Court rejects this contention. Mr. Arias testified that he was aware that marriage to a United States citizen may well enhance his chances of gaining reentry into the United States sooner than otherwise would be the case. However, he also maintained that he wished to marry Ms. Buck because she was the woman he loved and with whom he had a child. This sentiment is, at the very least, a rational explanation for his desire to return to the United States sooner rather than later. Moreover, the Court is satisfied that it is perfectly consistent with his testimony. Thus, the Court rejects Defendant’s equitable argument.
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4. Conclusion Accordingly, because Defendant’s policy does not appear to be closely tailored to solely effectuate a sufficiently important state interest, the Court concludes that Plaintiffs have demonstrated a reasonable probability that Defendant’s policy violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. B. Preemption Plaintiffs next argue that Defendant’s policy impermissibly infringes upon an area that is preempted by federal law. However, because the Court has already concluded that Plaintiffs have shown a reasonable probability of success on the merits of their due process and equal protection claims so as to justify the issuance of a preliminary injunction, the issue of preemption need not be addressed at this stage of the litigation. III. Irreparable Harm Plaintiffs will suffer irreparable harm if preliminary relief is not granted. “[T]o show irreparable harm a plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial.” Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (internal quotation marks and citation omitted). “[I]n order to warrant a preliminary injunction, the injury created by a failure to issue the requested injunction must be of a peculiar nature, so that compensation in money cannot atone for it.” Id. (internal quotation marks and citation omitted). Here, if the Court did not issue a preliminary injunction, Plaintiffs would suffer irreparable harm. They would be deprived of their fundamental constitutional right to marry. “When an alleged deprivation of a constitutional right is involved, most courts hold
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that no further showing of irreparable injury is necessary.” 11A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, FEDERAL PRACTICE AND PROCEDURE § 2948.1 (2d ed. 1995). The irreparable nature of the injury Plaintiffs would suffer is particularly acute here because of the fact that Mr. Arias is required to report to a United States Embassy or Consulate in Mexico by May 12, 2007. In order to do so, Mr. Arias must begin his long drive by Monday, May 7, 2007, less than one week away. Because Plaintiffs wish to exercise their fundamental constitutional right to marry prior to Mr. Arias’ departure, compensation in money after a lengthy trial does not provide an adequate remedy.
Accordingly, the Court finds that Plaintiffs have established that they would likely suffer irreparable harm if a preliminary injunction were not issued. IV. Balance of the Hardships
Granting Plaintiffs’ motion for preliminary relief will not cause greater harm to Defendant than the denial of such relief would cause Plaintiffs. To determine which way the balance of the hardships tips, a court must identify the possible harm caused by the preliminary injunction against the possibility of the harm caused by not issuing it. See Los Angeles Memorial Coliseum Commission v. NFL, 634 F.2d 1197, 1203 (9th Cir. 1980). Here, Defendant argues that, if the Court were to grant Plaintiffs’ motion for a preliminary injunction, she “will undoubtedly be . . . onslaught [with marriage] applications by persons similarly situated to Plaintiffs. In addition, the decision may effectively overturn a longstanding policy which has been applied by Registers and Clerks across the Commonwealth.” (Def.’s Br. in Opp. 24, Doc. 17.) The Court disagrees. Few, if any, undocumented aliens would risk removal or deportation in order to get married. As such,
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Defendant is unlikely to be onslaught with marriage applications by persons similarly situated to Plaintiffs. In addition, even if Defendant were onslaught with such applications, whatever harm felt by her office surely is not as great as the harm experienced by Plaintiffs in being deprived of their fundamental constitutional right to marry. As such, the balance of the hardships tilts in favor of Plaintiffs. V. Public Interest
The violation of a fundamental constitutional right constitutes irreparable injury. “[I]t is always in the public interest to prevent the violation of a party’s constitutional rights.” G & V Lounge, Inc. V. Michigan Liquor Control Commission, 23 F.3d 1071, 1079 (6th Cir. 1994) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979)). Accordingly, the issuance of a preliminary injunction would serve the public interest.
CONCLUSION For the reasons stated above, the Court will grant Plaintiffs’ motion for a preliminary injunction prohibiting Defendant from requiring Plaintiffs to prove Mr. Arias’ lawful presence in the United States as a condition of obtaining a marriage license. An appropriate Order follows.

May 1, 2007 Date

/s/ A. Richard Caputo A. Richard Caputo United States District Judge

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Case 3:07-cv-00717-ARC Document 24 Filed 05/01/2007 Page 18 of 18

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

HEATHER BUCK and JOSE GUADELUPE ARIAS-MARAVILLA,
Plaintiffs,
v.
DOROTHY STANKOVIC, Register of Wills for Luzerne County (in her individual and official capacities),
Defendant.

CIVIL ACTION NO. 3:07-CV-0717 (JUDGE CAPUTO)

ORDER NOW, this 1st day of May, 2007, IT IS HEREBY ORDERED that Plaintiffs Heather Buck and Jose Guadelupe Arias-Maravilla’s Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. 3) is GRANTED. Defendant Dorothy Stankovic, Register of Wills for Luzerne County, her agents and employees, are ENJOINED and RESTRAINED from requiring that Plaintiff Jose Guadelupe Arias-Maravilla produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license. This being a non-commercial case involving a relatively small amount of money, and the balance of hardships favors Plaintiffs, the requirement, pursuant to Rule 65(c) of the Federal Rules of Civil Procedure, that a security bond be posted is hereby WAIVED. Temple University v. White, 941 F.2d 201, 220 (3d Cir. 1991).

/s/ A. Richard Caputo A. Richard Caputo United States District Judge

 
 Case 3:07-cv-00717-ARC Document 42 Filed 02/11/08 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

HEATHER BUCK, et ai, Plaintiffs,
v. DOROTHY STANKOVIC,
Defendant.

CIVIL ACTION No. 03:07-cv-717 ARC

CONSENT ORDER WHEREAS Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that Defendant required foreign nationals who sought to obtain a marriage license in Luzerne County to prove their lawful presence in the United States, in violation of the fundamental right of those persons and their chosen spouses to marry, and in violation of the Supremacy Clause of the United States Constitution; and WHEREAS, Plaintiffs filed a motion for Temporary Restraining Order and/or preliminary Injunction that was heard by this Court on April 26, 2007; and WHEREAS, on May 1,2007, this Court held that Defendant's policy violated Plaintiffs' right to marry, granted Plaintiffs' motion and issued a preliminary injunction prohibiting Defendant from requiring that Plaintiff Jose

Case 3:07-cv-00717-ARC Document 42 Filed 02/11/08 Page 2 of 3
Guadelupe Arias-Maravilla produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license; and
WHEREAS, Defendant has complied fully with the Preliminary Injunction; and
WHEREAS, the parties now wish to resolve the remaining issues in the case without the need for further litigation:
It is therefore ORDERED, ADJUDGED and DECREED as follows: 1. Dorothy Stankovic, Register of Wills for Luzerne County, along with her
agents, employees, and successors in office [hereinafter "Defendant"] shall not require any applicant, as a condition for obtaining a marriage license, to produce a visa or other proof of lawful presence in the United States. This does not prohibit any person from offering such documents as proof of his or her identity, nor prevent Defendant from relying upon such documentation if offered. 2. Defendant shall publicize or post this policy in the same manner in which Defendant has publicized or posted her prior policy regarding identification for foreign nationals seeking marriage licenses. 3. Within 30 days of the date of entry of this Consent Order, Defendant shall pay Plaintiffs damages in the amount of$10,000. 4. Any application for attorneys fees and costs may be filed within 45 days of
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Case 3:07-cv-00717-ARC Document 42 Filed 02/11/08 Page 3 of 3

the date of this Order. 5. This Court shall retain jurisdiction over the case for the purpose of enforcing
the stipulations contained herein.

For Plaintiffs:

For Defendant:

lsi Mary Catherine Roper Mary Catherine Roper Witold J. Walzcak AMERICAN CIVIL LIBERTIES UNION OF PENNSYLVANIA
lsi John J Grogan John J. Grogan Edward Diver LANGER & GROGAN, P.C.
c. lsi Omar C. Jadwat
amar ladwat Lucas Guttentag Jennifer C. Chang AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT

lsi Harry G. Mahoney Harry G. Mahoney DEASEY, MAHONEY & VALENTINI, LTD.
lsi Conrad A. Falvello Conrad A. Falvello THE FALVELLO LAW FIRM
lsi Michael J Hudacek Michael J. Hudacek

lsi Seth F. Kreimer Seth F. Kreimer

I 1~ IT IS SO ORDERED, this Jh..day of

,2008.

WL~
A. Richard Caputo United States District Judge

3

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

HEATHER BUCK and JOSE GUADELUPE ARIA-MARAVILLA
Plaintiffs,
v.

CIVIL ACTION No. 3:07-CV-0717 (JUDGE CAPUTO)

DORTHY STANKOVIC, Register of Wills for Luzerne County, (in her individual and official capacities),

Defendant.

MEMORANDUM

Presently before the Court is the Petition for Attorneys’ Fees and Costs of Plaintiffs

Heather Buck and Jose Guadelupe Aria-Maravilla (Doc. 45). For the reasons set forth

below, Plaintiffs’ petition will be granted to the extent described in ths Memorandum.

BACKGROUND In this case, counsel for Plaintiffs represented them at a preliminary injunction hearing regarding the refusal of Defendant Dorothy Stankovic, Register of Wills for Luzerne County, to issue Plaintiffs a marriage license on the grounds that Mr. AriasMaravilla could not prove his lawful presence in the United States. (Pl.s’ Pet., Doc. 45 ¶1; Def.’s Response, Doc. 48 ¶1.) On May 1, 2007, this Court concluded that Plaintiffs demonstrated a reasonable probability of success on the merits of their argument that Defendant’s policy violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment; that “Plaintiffs will suffer irreparable harm if preliminary relief is not granted;” that “the balance of the hardships tilts in favor of Plaintiffs;” and that

“issuance of a preliminary injunction would serve the public interest.” (Mem. & Order, May 1, 2007, Doc. 24, at 15-17.) As such, the Court issued a preliminary injunction enjoining Defendant and her agents “from requiring that Plaintiff Jose Guadelupe AriasMaravilla produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license.” (Id. at 18.)
Following that decision, the parties negotiated a Consent Order, which this Court entered on February 11, 2008. (Consent Order, Feb. 11, 2008, Doc. 42.) Noting the Court’s findings and Defendant’s compliance with the preliminary injunction, the Order provided (1) that Defendant Stankovic and her agents, employees, and successors in office “shall not require any applicant, as a condition of obtaining a marriage license, to produce a visa or other proof of lawful presence in the United States,” (2) that the Order did not prohibit any person from offering, or Defendant from relying upon, such documentation, (3) that Defendant “shall publicize or post this policy in the same manner in which Defendant has publicized or posted her prior policy regarding identification for foreign nationals seeking marriage licenses,” and (4) that “Defendant shall pay Plaintiffs damages in the amount of $10,000.” (Id. at 1-2.) The Order also provided a forty-five (45) day time period for filing any application for attorneys fees and costs. (Id. at 2-3.)
Plaintiffs timely filed the present Petition, in which they request attorneys’ fees in the amount of one hundred twenty-four thousand, five hundred seventy-nine dollars ($124,579) and costs in the amount of one thousand, eight hundred fifteen dollars and fifty-nine cents ($1815.59). (Pls.’ Pet., Doc. 45 ¶ 12.) This motion is fully briefed and ripe for disposition.
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DISCUSSION I. Appropriateness of Awarding Attorneys’ Fees and Costs
In actions brought pursuant to 42 U.S.C. § 1983, district courts, in their discretion, “may allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” 42 U.S.C. § 1988(b). “The touchstone of the prevailing party inquiry” is “the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute.” Sole v. Wyner, 127 S. Ct. 2188, 2194 (2007). A plaintiff is a prevailing party for attorney’s fees purposes if she succeeds “on any significant issue in litigation which achieves some of the benefits the parties sought in bringing the suit.” Farrar v. Hobby, 506 U.S. 103, 109 (1992). The Third Circuit Court of Appeals recently held that plaintiffs were prevailing parties for purposes of Section 1988 where:
(1) the trial court, based upon a finding of a likelihood of plaintiffs’ success on the merits, entered a judicially enforceable order granting plaintiffs virtually all the relief they sought, . . .; (2) the defendant, after opposing interim relief, chose not to appeal from that order and remained subject to its restrictions for a period of over two years; and (3) the defendant ultimately avoided final resolution of the merits of plaintiffs’ case by enacting new legislation giving plaintiffs virtually all of the relief sought in the complaint. People Against Police Violence v. City of Pittsburgh, 520 F.3d 226, 233 (3d Cir. 2008). As the preliminary injunction in Plaintiff’s case was never “reversed, dissolved, or otherwise undone by the final decision in the same case,” Sole, 127 S. Ct. at 2195, Plaintiffs’ position is comparable to that of the plaintiffs in People Against Police Violence. Furthermore, a party that achieves the relief it sought is a prevailing party even if that relief was obtained through a consent decree. Maher v. Gagne, 448 U.S. 122, 129-30 (1980). As Plaintiffs achieved substantial relief in this litigation, and as the preliminary
3

injunction placed “a judicial imprimatur on plaintiffs’ entitlement to substantially all the relief they sought,” like in People Against Police Violence, Plaintiffs are prevailing parties within the meaning of Section 1988 and are entitled to a reasonable attorney’s fee.
The initial estimate of the appropriate fee “is properly calculated by multiplying the number of hours reasonably expended on litigation times a reasonable hourly rate.” Blum v. Stetson, 465 U.S. 886, 888 (1984). This amount is known as the “lodestar” figure, which is presumed to be the reasonable fee, but may require subsequent adjustment. Hahnemann Univ. Hosp. v. All Shore, Inc., 514 F.3d 300, 310 (3d Cir. 2008). Additionally, the Supreme Court has identified twelve (12) factors that should inform courts’ determination of the amount of a reasonable fee. Those are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to the acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Hensley v. Eckerhart, 461 U.S. 424, 430 n.3 (1983).
II. Hourly Rates In calculating the reasonable rate, the Court looks to the prevailing market rates in
the relevant community. Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 180 (3d Cir. 2001). The Court should consider the experience and skill of the prevailing party’s attorney, and compare the rates to those prevailing in the community for similar services
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by lawyers of reasonably comparable skill, experience, and reputation. Maldonado v. Houstoun, 256 F.3d 181, 184 (3d Cir. 2001). The prevailing party bears the burden of demonstrating that the requested hourly rates are reasonable. Id. However, where “the plaintiff has met his prima facie burden under the community market rate lodestar test, and the opposing party has not produced contradictory evidence, the district court may not exercise its discretion to adjust the requested rate downward.” Ridley v. Costco Wholesale Corp., 217 Fed. App’x 130, 139 (3d Cir. 2007) (quoting Washington v. Phila. County Ct. Com. Pl., 89 F.3d 1031, 1036 (3d Cir. 1996)).
A. Relevant Legal Community Plaintiffs argue that although this case was litigated in Scranton, Pennsylvania, the relevant community for determining a prevailing market rate is Philadelphia. (Pls.’ Pet., Doc. 45 ¶ 45.) Generally, attorney’s fees should be based on the rates prevailing in the judicial district that is the forum of litigation. Interfaith Cmty. Org. v. Honeywell Int’l Inc., 426 F.3d 694, 705 (3d Cir. 2005). There are, however, two (2) exceptions to this “forum rate” rule: (1) “[w]here local counsel are unwilling to handle a case” and (2) “where a case requires the ‘special expertise of counsel from a distant district.’” Id. In these situations, “the ‘relevant community’ for determining a prevailing market rate is the forum in which the attorneys regularly practice, not the forum of the litigation.” Id. In Interfaith, the district of New Jersey was the forum of litigation, and the Third Circuit Court of Appeals held that the plaintiff had not established one of the two (2) exceptions to the forum rate rule: need for special expertise from a distant district. Id. at 706. “The record [was] devoid of any evidence that [plaintiff] conducted a significant
5

search for counsel with the ability to handle this case,” and only showed that plaintiff “contacted a very small number of attorneys as part of its efforts to retain counsel in a cognate case.” 426 F.3d at 705. “Given that there are hundreds of firms in northern New Jersey [the forum district] that identify themselves as practicing environmental law, we do not think that such a search is adequate to justify concluding that [plaintiff] needed to turn to [the out-of-forum attorney] because no attorney in the region had the necessary expertise. . . . Indeed, we would have great difficulty in accepting that no attorney in northern New Jersey possessed the ability – as opposed to the willingness – to handle a case such as this.” Id. at 706.
On the other hand, the Third Circuit Court of Appeals in Interfaith concluded that the district court did not err in finding the plaintiff met the second exception to the forum rate rule, local counsel’s unwillingness to handle a case. Id. at 706. In making that determination, the district court had relied on the affidavit of Joseph Morris, the lead organizer for plaintiff Interfaith, wherein he recounted his unsuccessful efforts to find local counsel willing to represent plaintiff in a cognate case. Id. at 705-06. The affidavit stated that Morris had been turned down by at least five (5) attorneys in New Jersey and New York in that separate case and that his “general impressions” of the attorneys’ reasons were the degree of political risk (as the governor of New Jersey would be a named defendant), too much intensive factual work, too unfamiliar legal terrain, and fear of absorbing the costs of the case. Id. at 706.
In affirming the district court’s finding on unwillingness, though, the Court of Appeals stated that “what persuades us,” was another affidavit, of Edward Lloyd, local
6

counsel for plaintiff and the director of the Environmental Law Clinic at Rutgers School of Law. Id. at 707. This affidavit persuaded the Court of Appeals “insofar as it states that no attorney in northern New Jersey would have been willing to handle this case without an immediate advance of out of pocket costs which, in this case, foreseeably amounted to over one million dollars. In this respect, the Terris firm is a ‘rare bird.’” Id. (emphasis added). That second affidavit also stated that at the time suit was initiated, Lloyd was not aware of any attorneys or firms in New Jersey with experience in plaintiffs-side environmental litigation; that although some solo practitioners had such experience, none were in position to handle litigation of such magnitude; and that in twenty-nine years of experience, only his clinic and the out-of-forum firm plaintiff chose had brought citizen suit cases in federal court on behalf of citizens without contemporaneous payment of fees and expenses. Id.
In the instant case, Plaintiffs support their need for out-of-forum counsel by arguing that this case “involved complex constitutional issues interwoven with federal immigration law;” “raised issues of first impression,” and was “filed and litigated under extreme time pressure.” (Pls.’ Pet., Doc. 45 ¶ 47.) The litigation was time sensitive because of the set date, May 12, 2007, by which Plaintiff Aria-Maravilla had to leave the United States. (See Grogan Decl., Ex. 3 to Doc. 45.) 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. (Pls.’ Pet., Doc. 45 ¶¶ 46-52; Walczak Decl., Ex. 2 to Doc. 45.) In litigating Lozano, the American Civil Liberties Union (“ACLU”) came
7

to find that “the intense research and writing required to develop the claims and case
theories required more time and expertise than the Scranton-area practitioners could
provide.” (Pls.’ Pet., Doc. 45 ¶ 54.) This knowledge gained in Lozano informed the
choice to employ non-forum counsel in this case. (See Walczak Decl., Ex. 2 to Doc. 45 ¶
12.) According to one of Plaintiffs’ attorneys, Legal Director for the ACLU of
Pennsylvania Witold Walczak,
[e]xcellent civil rights lawyers practice in the Middle District, [Barry H.] Dyller and [George R.] Barron being two of them. But the issues in the Lozano case – like this one – were novel and the relevant law esoteric, particularly the application of the Supremacy Clause and the highly specialized morass that is federal-immigration law. Prosecuting the case required attorneys with diverse expertise, including litigators experienced with complex trial practice before federal courts, civil rights practitioners, immigration-, constitutional- and municipal-law experts. I was unable to identify any lawyers in the Scranton area with expertise in Supremacy Clause litigation and the intersection of immigration and constitutional law.
(Id. ¶ 10.) Attorney Walczak describes the expertise that out-of-forum attorneys, such as
Omar Jadwat, Jennifer Chang, and Seth Kreimer, provided in this case and notes that on
the recommendations of Kreimer and co-lead counsel Mary Catherine Roper, the team
retained Attorneys John Grogan and Edward Diver, partners at “a small, highly
specialized litigation firm in Philadelphia,” not only because Plaintiffs needed attorneys
with Grogan and Diver’s expertise in constitutional litigation, but also because Plaintiffs
needed experienced attorneys “who could immediately commit themselves to an
intensive effort” and who were willing “to devote themselves to this case to the exclusion
of virtually all other work through the preliminary injunction proceedings.” (Id. ¶ 12.) Mr.
Walczak, who states that he is familiar with many constitutional and immigration lawyers
in Northeastern Pennsylvania, states “[i]t would simply not have been possible for [these
8

local attorneys] to devote the time and effort or to bring together the many types of expertise needed, particularly under the tight deadlines of a case seeking preliminary injunctive relief.” (Id. ¶ 15.)
Finally, in addition to expertise and time constraints, Attorney Walczak notes a third factor necessitating out-of-forum counsel: unpopularity of clients. “[F]rom the Lozano case I learned how difficult it is to find lawyers willing to work on a high-profile case involving undocumented immigrants – which one of our clients was admitted to be. . . . In the Lozano litigation, several established firms declined to work on the case because of the controversial nature of the issues before we made contact with [the Philadelphia firm with which Walczak worked on Lozano].” Plaintiffs also note that the Defendant in this case retained a Philadelphia law firm to represent her. (Id. ¶ 51.)
With regard to the first exception, Plaintiffs have not provided more evidence of local counsel’s inability to handle this case than the evidence – upon which it was clear error for the district court to base its finding – that plaintiffs provided in Interfaith. As such, Plaintiffs have not satisfied the first exception to the forum rate rule.
Regarding the second exception, Plaintiffs relate their experience in the Lozano litigation to explain the factual situation regarding the availability of local counsel that they faced at the outset of this case; however, they do not provide evidence that any firms actually refused to work on the instant case. Attorney Walczak did state that it would not have been possible for local attorneys to devote their energies to this case to the exclusion of virtually all other work – as necessitated by the tight deadlines imposed by Mr. Aria-Maravilla’s imminent departure. While not insensitive to the tight deadlines in this case, the Court finds this aspect of Walczak’s affidavit less convincing of local
9

counsel’s unwillingness than was the affidavit which convinced the Third Circuit Court of Appeals in Interfaith. That affidavit, filed by a local attorney, stated that in twenty-nine (29) years of practicing environmental law in the forum district, the attorney knew of only two (2) firms which had brought citizen suit cases in federal courts without contemporaneous payment of fees and expenses, which in Interfaith could have been over one million dollars ($1,000,000). See 426 F.3d at 707. This led the Court of Appeals to conclude that the non-local firm which did undertake the case was “a ‘rare bird.’” Id. Here, Plaintiffs have produced no such evidence; that is, no evidence that it is rare for plaintiffs attorneys in this district to undertake civil rights cases with strict deadlines knowing that they will only be paid, if at all, under a fee shifting statute.
Furthermore, Plaintiffs’ arguments based on the controversial nature of Lozano causing “several established firms” in the Middle District of Pennsylvania to decline to work on that case do not necessarily apply to the case at hand. Although both cases involved undocumented immigrants and proof of citizenship requirements, the issues in Lozano arguably impacted more people, as the plaintiffs were more numerous, the defendant a municipality rather than an individual official, and the challenged policy an enacted ordinance rather than the less formal policy of one office. And it has not been established that the same level of controversy or unpopularity of clients would attend a case involving the employment and housing rights of a group of undocumented immigrants in a city whose population had recently “increased sharply” because of “a recent influx of immigrants,” see Lozano, 496 F. Supp. 2d at 484, as would attend a case involving the right of two people to marry before one Plaintiff’s voluntary departure from
10

the United States. In light of the foregoing, Plaintiffs have not satisfied the second exception to the
forum rate rule. Therefore, attorneys’ fees will be determined based on prevailing market rates in this district.
B. Reasonableness of Rates Plaintiffs request the following hourly rates for their counsel: (1) For Ms. Roper, co-lead counsel in this case, Plaintiffs request an hourly rate of three hundred fifty dollars ($350). (Doc. 45 ¶ 58.) Roper, of the ACLU of Pennsylvania, has practiced law since 1994 after completing a federal judicial clerkship. Her experience includes non-profit and private sector work, including three (3) years as a partner at the firm Drinker Biddle & Reath, LLP, in Philadelphia. (Roper Decl., Ex. 5 to Doc. 45.) In accordance with ACLU practice, she does not charge clients, but “[i]n all fee petitions and settlement negotiations” she bills her time “at $350 per hour.” (Id.) (2) For Mr. Grogan, co-lead counsel along with Attorney Roper, Plaintiffs request a rate of three hundred fifty dollars ($350), which Mr. Grogan indicates was his regular billing rate at the time he initiated this case. (Pls.’ Pet., Doc. 45 ¶ 58.) Mr. Grogan, a partner at the firm Langer, Grogan, and Diver, P.C., with a regular practice in complex civil litigation and experience in litigation involving immigrants and civil rights, has been practicing since 1994. He has served as a law clerk in the Supreme Court of New Jersey, co-founded and directed a non-profit law firm, taught law, and worked in the private sector. (Grogan Decl., Ex. 3 to Doc. 45.)
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(3) For Mr. Diver, also a partner at Langer, Grogan, and Diver, P.C., who graduated law school in 1999 and joined the firm in 2005 following federal district and appellate court clerkships and work in academia, Plaintiffs request a rate of three hundred dollars ($300), which Diver states was his normal billing rate at the time of the case. (Pls.’ Pet., Doc. 45 ¶ 58, Diver Decl., Ex. 4 to Doc. 45.)
(4) For Mr. Jadwat, of the ACLU Foundation Immigrants’ Rights Project (“ACLU IRP”) based in New York, Plaintiffs request a rate of three hundred dollars ($300). (Pls.’ Pet., Doc. 45 ¶ 58.) Attorney Jadwat has practiced law, including complex federal cases, with the ACLU IRP since 2002, after a one-year federal judicial clerkship. (Jadwat Decl., Ex. 6 to Doc. 45.) As an ACLU attorney, he does not charge clients, but indicates that the market rate for attorneys of his skill and experience in New York City is at least four hundred seventy-five dollars ($475) and that he is requesting the lower rate of three hundred dollars ($300) to avoid disputes in this Fee Petition. (Id.)
(5) For Ms. Chang, of the ACLU IRP in San Francisco, Plaintiffs request a rate of two hundred sixty dollars ($260). (Pls.’ Pet., Doc. 45 ¶ 58.) Attorney Chang has practiced law, including complex federal cases, at the ACLU IRP since 2004, following a clerkship for a federal appellate judge. (Chang Dep., Ex. 7 to Doc. 45.) Attorney Chang indicates she has particular expertise in the rights of non-citizens under federal immigration statutes and regulations and under the constitution, as well as in the area of discrimination law. (Id.) While she does not charge her clients, she indicates that the market rate for attorneys of her skill and experience in San Francisco is at least three hundred twenty dollars ($320) per hour and that she is requesting the lower rate of twohundred sixty dollars ($260) in the interest of avoiding disputes in this Fee Petition. (Id.)
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(6) For Mr. Kreimer, a professor at the University of Pennsylvania Law School who has “taught, consulted and practiced in the fields of constitutional law and civil rights litigation for over 25 years,” Plaintiffs request an hourly rate of three hundred eighty-five dollars ($385), which Attorney Kreimer indicates was his regular billing rate at the time he participated in the case. (Pls.’ Pet., Doc. 45 ¶ 58, Kreimer Decl., Ex. 8 to Doc. 45.)
Finally, Plaintiffs indicate that Attorney Walczak provided consultation but that they are not seeking compensation for his time. (Grogan Decl., Ex. 3 to Doc. 45.) In support of these rates, Plaintiffs submitted the attorneys’ own declarations and curricula vitae, as well as the declarations of other attorneys.
1. Plaintiff’s Prima Facie Evidence “The party seeking fees 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.” Interfaith, 426 F.3d 708 (internal quotation marks omitted) (emphasis added). To begin, Plaintiffs have not met this burden with respect to Attorneys Jadwat and Chang, but have done so with respect to the other attorneys: First, they submit the declaration of Edward M. Posner, a partner at the firm Drinker Biddle & Reath, LLP, in Philadelphia, who is involved in setting hourly rates and reviewing billings at his firm. He indicates he worked with Attorney Roper during her nine (9) years at his firm and that he knows of Attorneys Grogan and Diver by reputation. (Posner Decl., Ex. 9 to Doc. 45.) Mr. Posner’s declaration focused on the reasonableness of rates based on the Philadelphia-area market, but he did indicate that Roper’s requested rate of three hundred fifty dollars ($350) per hour “is low, by comparison to rates regularly charged for
13

attorneys with similar experience and expertise,” and that the rates for Attorney Grogan, who has been practicing as long as Ms. Roper, and for Attorney Diver, appear reasonable based on the Philadelphia market. (Id.) Plaintiffs have also submitted the Declaration of Francis Patrick Newell, a partner at the Philadelphia firm Harkins Cunningham, who states that upon review of the curricula vitae of Attorneys Roper, Grogan and Diver, the rates they seek “appear lower than rates charged by many comparable Philadelphia-based counsel.” (Newell Decl., Ex. 10 to Doc. 45.)
In support of the reasonableness of their requested rates in the forum district, Plaintiffs submit the declaration of Thomas B. Schmidt, III, who is of counsel at Pepper Hammilton, LLP, and managing attorney of the firm’s Harrisburg, Pennsylvania, office. (Schmidt Decl., Ex. 1 to Doc. 51.) Mr. Schmidt indicates that he has participated in setting hourly rates for attorneys practicing in his office and that in his experience, “the major Harrisburg firms set their rates at about 80% of the rates that comparable firms charge in Philadelphia.” (Id.)
Prima Facie Evidence of Reasonable Rates for Attorneys Roper and Grogan Mr. Schmidt further states that attorneys at his firm’s Philadelphia office with experience and seniority comparable to Roper and Grogan charge from four hundred twenty to four hundred ninety-five dollars ($420 - $495) per hour; and as noted above, Roper and Grogan themselves regularly billed three hundred fifty dollars ($350) per hour in the Philadelphia area market at the time of this litigation. The range of Philadelphiaarea rates for Attorneys Roper and Grogan that is supported by the evidence is thus three hundred fifty to four hundred ninety five dollars ($350 - $495). When discounted by twenty percent (20%) in accordance with Mr. Schmidt’s observations, this range yields a
14

local rate of two hundred eighty to three hundred ninety-six dollars ($280 - $396), with a mid-point at three hundred thirty-eight dollars ($338).
Prima Facie Evidence of Reasonable Rate for Attorney Diver Mr. Schmidt stated as well that attorneys in his firm’s Philadelphia office with nine (9) years of experience and seniority comparable to that of Attorney Diver charge from three hundred eighty to four hundred twenty-five dollars ($380 - $425) per hour; and as noted above, Attorney Diver regularly billed three hundred dollars ($300) per hour in Philadelphia at the time of this litigation. The range of Philadelphia-area rates for Attorney Diver that is supported by the evidence is thus three hundred dollars to four hundred twenty-five dollars ($300 - $425). When discounted by twenty percent (20%) in accordance with Mr. Schmidt’s observations, this range yields a local rate of two hundred forty to three hundred forty dollars ($240 - $340), with a mid-point at two hundred ninety dollars ($290). Prima Facie Evidence of Reasonable Rate for Attorney Kreimer Mr. Schmidt also stated that “[a] Pepper Hamilton partner at the Harrisburg office with seniority comparable to Professor Kreimer’s bills at $415/hour.” (Schmidt Decl., Ex. 1 to Doc. 51.) And as noted above, Professor Kreimer’s regular billing rate, in Philadelphia, at the time of this litigation was three hundred eighty-five dollars ($385) per hour; when discounted by twenty percent (20%) in accordance with Mr. Schmidt’s observations, this figure yields a local rate of three hundred and eight dollars ($308). The range of local rates for Attorney Kreimer that is supported by the evidence is thus three hundred eight to four hundred fifteen dollars ($308 - $415), with a mid-point at three hundred sixty-one dollars and fifty cents ($361.50).
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2. Defendant’s Rebuttal Evidence of Reasonable Rates The foregoing submissions satisfy Plaintiffs’ prima facie burden of demonstrating reasonable hourly rates for Attorneys Roper, Grogan, Diver, and Kreimer. Defendant, in response, has submitted contradictory evidence of reasonable rates in the Middle District of Pennsylvania. Defendant cites the declaration of Samuel J. Pace, Jr., a partner at the firm of Dugan, Brinkmann, Maginnis and Pace in Philadelphia, who indicates he has spent his career at three (3) law firms in Philadelphia, that over the last twenty-five (25) years he has had sole responsibility for billing all his hourly rate clients, and that he regularly attends sessions at conventions where billing and billing guidelines are discussed. (Pace Decl., Ex. B to Doc. 48 ¶¶ 1-3.) Mr. Pace indicates that based on his experience and understanding, “the prevailing hourly rate for sophisticated litigation in the Middle District of Pennsylvania varies from $150.00 to $250.00 per hour.” (Id. ¶ 12.) His declaration also states that the Defendant’s attorney Harry G. Mahoney, “an experienced litigator in the area of civil rights litigation with 30+ years of experience, billed at the rate of $210.00/hour which is in the range of rates I would expect in the Forum.” (Id. ¶ 19.) Mr. Pace characterizes two hundred fifty dollars ($250) per hour, while “at the high end,” to be “a more reasonable hourly rate” for Attorneys Roper, Grogan, and Diver that the rates Plaintiffs requested for these attorneys, and he bases his calculations of reasonable fees for these attorneys on the rate of two hundred fifty dollars ($250). (Id. ¶¶ 20-21.) Defendant also indicates that associates at Mr. Mahoney’s firm fill at a rate of one hundred sixty dollars ($160) per hour. (Def.’s Response, Doc. 48 ¶ 49.)
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3. Rates to Be Awarded For Attorneys Roper and Grogan, who earned their law degrees in 1993, the Plaintiffs’ prima facie evidence supports a local rate of three hundred thirty-eight dollars ($338), and Defendant’s evidence supports a rate of two hundred fifty dollars ($250) per hour. The mid-point between the Plaintiffs’ and Defendant’s rates is thus two hundred ninety-four dollars ($294). Rounding slightly, the Court finds two-hundred ninety dollars ($290) to be a reasonable rate for Attorneys Roper and Grogan in this case. For Attorney Diver, who earned his law degree in 1999, Plaintiffs’ evidence supports a local rate at two hundred ninety dollars ($290). Turning to Defendant’s evidence of the appropriate range, Attorney Diver’s rate would fall below those of the more experienced Roper and Grogan but still closer to the high end of that range to the low end; thus, the Court determines that Defendant’s evidence points to a rate of two hundred twenty-five dollars ($225) per hour. The mid-point between these figures, the first based on Plaintiffs’ evidence and the second based on Defendant’s evidence, is two hundred fifty-seven dollars and fifty cents ($257.50). Rounding slightly, the Court finds that two hundred and sixty dollars ($260) per hour is a reasonable rate for Attorney Diver in this case. For Attorney Kreimer, Plaintiffs’ evidence supports a local rate of three hundred sixty-one dollars and fifty cents ($361.50). Turning to Defendant’s evidence, Attorney Kreimer’s rate would be no lower within the appropriate range than that of Attorneys Roper and Grogan; thus, the Court determines that Defendant’s evidence points to a rate of two hundred fifty dollars ($250) per hour for Attorney Kreimer. The mid-point between these figures is three hundred five dollars and seventy-five cents ($305.75.) Rounding
17

slightly, the Court finds that three hundred dollars ($300) per hour is a reasonable rate for Attorney Kreimer in this case.
Finally, beyond the attorneys’ own affidavits, Plaintiffs have not submitted evidence of what reasonable local rates would be for Attorneys Jadwat, who earned his law degree in 2001, and Attorney Chang, who earned hers in 2003. In light of the Defendant’s evidence that one hundred sixty dollars ($160) per hour is a reasonable rate for associate-level attorneys in this district, and in light of Attorney Jadwat’s relative experience in relation to Attorney Chang, the Court finds that a reasonable rate for Attorney Chang is one hundred sixty dollars ($160) per hour, and a reasonable rate for Attorney Jadwat is one hundred eighty dollars ($180) per hour.
III. Reasonableness of Hours Expended The Court must also “review the time charged, decide whether the hours claimed
were reasonably expended for each of the particular purposes described, and then exclude those that are ‘excessive, redundant, or otherwise unnecessary.’” Public Interest Research Group of N.J., Inc. v. Windall, 51 F.3d 1179, 1188 (3d Cir. 1995) (citations omitted). The general guide for reasonableness is that “[h]ours that are not properly billed to one’s client are not properly billed to one’s adversary pursuant to statutory authority.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (citation omitted).
First, Plaintiffs must submit evidence of the hours worked that is “specific enough to allow the district court to determine if the hours claimed are unreasonable for the work performed.” Washington v. Phila. County Court of Common Pleas, 89 F.3d 1031, 1037
18

(3d Cir. 1996). To be specific enough, a petition must be “fairly definite . . . as to the hours devoted to general activities, e.g., pretrial discovery, settlement negotiations . . . . However, it is not necessary to know the exact number of minutes spent nor the precise activity to which each hour was devoted.” Id. at 1037-38 (citing Rode v. Dellarciprete, 892 F.2d 1177, 1190 (3d Cir. 1990)). Further, there is no requirement “that records be kept by task - e.g., for each motion, issue or part of the case.” Id. at 1038.
Once Plaintiffs have met this initial burden, “[t]he party opposing the fee award then has the burden to challenge the reasonableness of the requested fee, by affidavit or brief with sufficient specificity to give the fee applicant notice of the objection.” E.E.O.C. v. Fed. Express Corp., – F. Supp. 2d –, Civ. A. No. 1:02-CV-1194, 2005 WL 6073699, at *15 (M.D. Pa. Jan. 18, 2005) (Kane, J.). “Once the adverse party raised objections to the fee request, the district court has considerable discretion to adjust the award in light of those objections.” Id.
To meet their burden, Plaintiffs have submitted declarations of their attorneys and individual and composite time sheets. (See Pls.’ Fee Request Chart, Ex. 1 to Roper Suppl. Decl., Ex. 2 to Doc. 51 [hereinafter “Fee Request Chart”]; Exs. 3-8 to Doc. 45.) These sheets indicate that between April 2, 2007 and March 27, 2008, Plaintiffs’ attorneys spent a total of 425.7 hours on the case. (Roper Suppl. Decl., Ex. 2 to Doc. 51; Composite Chart of Fees, Ex. 11 to Doc. 45.) In the exercise of billing judgment, however, they reduced the total requested time to 376.2 hours. (Fee Request Chart.) Defendant’s specific objections are discussed below:
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A. Attorneys Chang and Jadwat Defendant argues that “[i]t does not appear that Ms. Chang or Mr. Jadwat made a significant contribution to the plaintiffs’ cause and their time should not reasonably have been included.” (Decl. of Samuel J. Pace, Partner, Dugan, Brinkmann, Marginnis and Pace, Ex. 2 to Doc. 48 ¶ 18.) But they make no more specific objection to the relatively small number of hours for which these attorneys request compensation, and Plaintiffs insist that these attorneys “are immigration law and policy experts . . . who provided irreplaceable consultation on specific and complex issues of immigration law.” (Pls.’ Reply Br., Doc. 51 at 10.) These attorneys will not be excluded from recovering fees. B. Duplicative Legal Research Defendant challenges as duplicative much of the initial research performed in this case, because “a number of issues involved in this case, such as federal preemption under the supremacy clause, had already been researched extensively by some of these same attorneys, i.e., Witold Walczak, Jennifer Chang and Omar Jadwat, in the Lozano case.” As such, “much of the research conducted . . . in preparation of the Complaint and Motion for Injunctive Relief was redundant and unnecessary.” (Def.’s Response, Doc. 48 ¶ 70.) This duplication argument cannot apply, however, to research of issues not involved in the Lozano litigation, most notably, the constitutional right to marry, to which many of Plaintiffs’ research hours were devoted. The remaining research hours were spent as follows: Mr. Diver expended six (6) hours on April 19, part of a 6.3 hour entry on April 20, and 7.7 hours on April 24 researching and preparing a memorandum on the REAL ID Act
20

and state identification requirements. (Fee Request Chart.) Mr. Grogan spent 2.2 hours on April 20 reviewing the REAL ID Act and part of a 6.6 hour entry on April 21 researching “abstention and real id issues.” (Id.) The Court cannot conclude that these hours duplicate work done on the Lozano litigation.
Additionally, Mr. Kreimer spent a total of one (1) hour, spread among three (3) days in April, researching 11th Amendment, preemption, and abstention issues, as well as part of a 0.75 hour entry on April 12 researching irreparable injury. (Fee Request Chart.) Plaintiffs indicate that some of their research on preemption was based on Lozano research, but they state that they “spent relatively little time translating [the Lozano research] into the pleading and briefing on the preemption issue.” (Pls.’ Reply Br., Doc. 51, at 14.) Upon review of the Fee Petition, time spent on the issue of preemption appears to be minimal, consistent with Plaintiffs’ position that their counsel applied this aspect of Lozano research to this case, but did not duplicate the research.
Finally, the Fee Petition also includes entries for research of a more general nature. Attorney Diver expended 18.2 hours researching “constitutional and immigration issues” between April 4th and 6th; and Attorney Grogan spent part of a 4.2 hour entry on April 22 researching “constitutional litigation.” (Fee Request Chart.) Generally, background research, even if not connected to a particular pleading or motion, is compensable, although courts have reduced the amount of time recoverable for background research of a very general nature. See Watcher v. Pottsville Area Emergency Med. Serv., Inc., No. Civ. A. 3:00-CV-1123, 2008 WL 1924118, at *4 (M.D. Pa. Apr. 28, 2008) (Caputo, J.). For instance, in American Lung Ass’n v. Reilly, 144
21

F.R.D. 622, 627-28 (E.D.N.Y. 1992), the court allowed compensation for only ten (10) out of 22.9 hours that attorneys who “characterize[d] themselves as experts in the field of federal environmental law” spent familiarizing themselves with the Clean Air Act and the Federal Rules of Civil Procedure.
Plaintiffs have argued elsewhere in their Fee Petition that this case and the Lozano litigation both involved the intersection of constitutional and immigration law, (e.g. Pls. Pet., Doc. 45 ¶ 47), and that Attorney Diver’s hourly rate is justified in part because he had “expertise in constitutional law” and “some experience with immigration law.” (Id. ¶¶ 52, 54.) “[T]he higher the allowed hourly rate commanded based on skill and experience, the shorter the time it should require an attorney to perform a particular task.” Rainey v. Phila. Hous. Auth., 832 F. Supp. 127, 129 (E.D. Pa. 1993). Although the Court has reduced Attorney Diver’s requested rate somewhat, it still finds his 18.2 hours of research described only as on “constitutional and immigration issues” to be excessive. Therefore, this time will be reduced by half, or 9.1 hours.
C. Excessive Time Preparing Complaint and Motion Defendant challenges Plaintiffs’ request for hours spent preparing the Complaint and motion as excessive, largely because this time is attributed mostly to the relatively more experienced attorneys Grogan and Diver. (Def.’s Response, Doc. 48 ¶ 70.) In support, Defendant submits the Declaration of Samuel Pace, opining that “[i]t is unreasonable that an experienced litigator would require 27.1 hours to draft a Complaint as Mr. Grogan did in addition to 24.6 hours of research,” and that “the total of 74.5 hours spent by Messrs. Grogan and Diver in connection with preparation of the Preliminary
22

Injunction Motion, Brief and research is unreasonable.” (Id. ¶ 9.)
Mr. Pace does not specify how he derived these sums from Plaintiffs’ time sheets,
but upon review of the Fee Request Chart, and excluding time entries identified as
devoted only to “research,” which were addressed above, the Court finds that: (1) For the Complaint, Mr. Grogan devoted 23.1 hours to preparing it1; Mr. Jadwat
devoted two (2) hours, Ms. Chang, one (1) hour, and Mr. Kreimer, 1.25 hours to reviewing
and editing it; and Ms. Roper devoted 3.4 hours to making final revisions and filing the
Complaint. (See Fee Request Chart.) The total time requested for work on the
Complaint is thus 30.75 hours.
(2) For the Preliminary Injunction motion and supporting brief, Mr. Diver devoted 49.6 hours to their preparation; Mr. Grogan devoted seven (7) hours2 to their drafting and
review; Mr. Jadwat devoted 2.5 hours, Ms. Chang, 2.4 hours, and Mr. Kreimer 0.25 hours
to reviewing the brief; and Ms. Roper devoted five (5) hours to final revisions and filing of
the motion and supporting brief. (See id.) The total time requested for work on the
Preliminary Injunction motion is thus 62.75 hours.
Plaintiffs argue that these time entries are not excessive because “this case had to
be won at the preliminary injunction stage or not at all.” (Pls.’ Reply Br., Doc. 51, at 15.)
1
The time sheet reflects 18.5 hours on preparation of the Complaint and another entry, of 9.2 hours on April 10, 2007, in which Attorney Grogan worked on both the Complaint and the preliminary injunction. For purposes of calculation, the Court will assume that half of this shared time, 4.6 hours, was spent on the Complaint, with another 4.6 on the preliminary injunction.
2
This seven (7) hours reflects a 2.4 hour entry on April 18, 2007 and half of the 9.2 hour entry on April 10, 2007 that was split between Complaint and Preliminary Injunction.
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If Plaintiffs did not obtain a preliminary injunction – even if they would have later prevailed – Mr. Arias-Maravilla would not be able to return to the country to be married. (Id.) “This was not a case in which the Plaintiffs could refine their claims as the evidence surfaced and the litigation progressed – every potential claim – state or federal – and every potential defense had to be explored and nailed down before the first papers were filed on April 17, 2007.” (Id.) Plaintiffs continue: “the short time afforded Plaintiffs to obtain relief or lose forever their opportunity to do so is relevant to the reasonableness of the time devoted by Plaintiffs’ counsel during those four weeks in April 2007.” (Id.)
Barrett v. West Chester Univ. of Pa. of State Sys. of Higher Educ. concerned a challenge to the amount of time spent on a complaint and motion for preliminary injunction. No. 03-CV-4978, 2006 WL 859714, at *8 (E.D. Pa. Mar. 31, 2006). While the court made minor adjustments to time entries based on specific objections, it held it could not conclude that 69.9 hours to prepare the motion was unreasonable, where the hours were supported by time sheets and explanatory notes, the motion was thirty (30) pages long and included one hundred sixty-one (161) pages of exhibits. Id. In light of Plaintiff’s four (4) page motion, sixteen (16) pages of supporting declarations, twenty-nine (29) page supporting brief, and more significant, in light of the “novelty . . . of the questions” and “time limitations imposed by the client or the circumstances,” see Hensley, 461 U.S. at 430 n.3, particularly the need to win “at the preliminary injunction stage or not at all,” (Pls.’ Reply Br., Doc. 51, at 15), this Court cannot conclude that the 62.75 hours Plaintiffs request for work on the preliminary injunction motion are unreasonable.
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Regarding the 23.1 hours Attorney Grogan spent preparing the Complaint, other courts within this district have reduced smaller amounts of time devoted to preparation of an initial complaint. The court in Barrett, also a preliminary injunction case, awarded fees for only eight (8) of the eleven (11) hours spent drafting the fifteen (15) page complaint, as the complaint contained passages “strikingly similar” to those in another case. 2006 WL 859714, at *8. In Powell v. SEPTA, a §§ 1981 and 1983 case alleging discriminatory and retaliatory termination, the court awarded fees for only five (5) of the eleven (11) hours the plaintiff claimed for preparing an initial complaint. No. 05-CV-6769, 2007 WL 1795686, at *1, 4 (E.D. Pa. June 18, 2007). Here, the Complaint is twenty-two (22) pages in length and raises three (3) counts. (See Doc. 1.) The claims raised have some novelty, but on the other hand, the 23.1 hours Attorney Grogan requests for preparing the Complaint are in addition to other time he claims for preparing the Plaintiffs’ declarations (which recount the same facts set forth in the Complaint) and researching constitutional protections for marriage and the Pennsylvania state marriage requirements (which law is set forth in the Complaint). These 23.1 hours are also in addition to hours the other attorneys claim for preparing the preliminary injunction motion and supporting brief, which address the points of law addressed in the Complaint. As such, 23.1 hours is excessive for preparing the Complaint. This amount of time will therefore be reduced by half, and 11.55 hours will therefore be deducted from Attorney Grogan’s requested fee.
D. Preparation for Preliminary Injunction Hearing By the Court’s calculation, the time entries devoted to preparation for the hearing, including all research conducted by the attorneys who attended the hearing subsequent
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to filing of the preliminary injunction motion, are as follows: 12.6 hours by Attorney Roper; no more than 29.3 hours by Attorney Grogan, as his time entries that mention hearing preparation also include time spent on a trip to Hazleton and in a meeting with clients; no more than 32.6 hours by Attorney Diver, as his time entries that mention hearing preparation include travel to Hazleton; and 0.4 hours by Attorney Jadwat, in which he reviewed the Defendant’s responsive papers. (See Fee Request Chart.) Plaintiffs thus seek no more than 74.9 hours for preparation for the hearing.
Defendant objects to the amount of time that Attorneys Grogan and Diver spent in preparation for the hearing. (Def.’s Response, Doc. 48 ¶¶ 71, 78.) She submits the statement of Samuel Pace that it was unreasonable for two attorneys to bill a total of 63.2 hours3 in preparation for the five (5) hour hearing which included five (5) witnesses and according to Pace was “neither long, complicated nor difficult.” (See Pace Decl., Ex. 2 to Doc. 48 ¶¶ 9, 14.)
In Barrett, the plaintiffs submitted 206.5 hours spent preparing for a preliminary injunction hearing that lasted twenty-four (24) hours, over the course of four (4) days. 2006 WL 859714, at *9. The court held that of these hours, ninety (90) expended by a seventh-year associate on “preparation for hearing” or “revising outlines” was excessive and reduced this amount by twenty-five percent (25%). Id. at *10. The court also deducted 2.5 of the 4.9 hours spent by a paralegal as excessive, and deducted 1.6 attorney hours spent preparing for a witness who never testified. Otherwise, the court
3
The Court calculates that these attorneys are requesting only 61.9 hours, rather than 63.2, for their preparation time.
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made no more deductions from the preparation time. See id. The court thus allowed 179.9 hours of compensable preparation time, and made its deductions based only on specified objections. Although the hearing in this case was not as lengthy as the hearing in Barrett, the Court nonetheless cannot conclude that the no-more-than 29.3 hours of preparation time claimed by Attorney Grogan and the no-more-than 32.6 hours of preparation time claimed by Attorney Diver are excessive.
Defendant also objects to the fact that Attorneys Grogan, Diver, and Roper each billed time for a strategy meeting they held on April 20, 2007. (Def.’s Response, Doc. 48 ¶ 25.) Although Defendants characterize these entries as “triple-billing” that is “[c]learly . . . unreasonable,” the Court finds nothing improper or unnecessary about the lead attorneys in this case holding this one particular meeting to confer about strategy for their upcoming hearing. See Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly, 195 Fed. App’x 93, 99 (3d Cir. 2006) (finding nothing unreasonable about approximately one hundred forty (140) hours that attorneys spent collectively on meetings and conference calls). Neither of Defendant’s objections merit reduction of hearing preparation time.
E. Attorney Diver’s Attendance at the Hearing The preliminary injunction hearing was attended by Attorneys Grogan, Diver, Roper, and Jadwat. Plaintiffs do not request compensation for Attorney Jadwat’s time spent at the hearing (see Fee Request Chart, at 3), but do request compensation for the other attorneys’ attendance. Defendant argues that only Attorneys Grogan and Roper actively participated at the hearing and as such, Mr. Diver should not be compensated for his attendance. (Def.’s Response, Doc. 48 ¶ 71 n.1.) According to Plaintiffs, however,
27

“Mr. Diver’s presence at the hearing was necessary, as he was the member of the legal team prepared to address issues relating to the sufficiency of Mr. Arias-Maravilla’s passport as personal identification.” (Pls.’ Reply Br., Doc. 51, at 11-12.) A review of the time sheets reveals that Attorney Diver did the vast majority of research regarding federal and state identification laws. (Fee Request Chart.) He also did the vast majority of work drafting the Preliminary Injunction motion and supporting brief. (See id.) The Court is thus unable to conclude that his attendance at the hearing was unnecessary or an unreasonable expenditure of attorney hours.
F. Travel Time Defendant objects to the Plaintiffs’ request for time spent traveling to and from Luzerne County. Generally, a party that hires out-of-forum counsel may not be compensated for counsel’s travel time and costs in a fee shifting statute. Interfaith, 426 F.3d at 710. As such, attorney travel time is not compensable here. As for identifying travel time, Defendant objects that the travel time claimed often “vastly exceeds the time spent on the actual task for which the trip was made,” and that it time is often “simply lumped in with other time entries so that it is impossible to determine how much time was actually travel time.” (Def.’s Response, Doc. 48 ¶ 72.) It is possible, however, to reasonably estimate how much travel time Plaintiffs request. Plaintiff’s Fee Petition requests compensation for the following trips4:
4
Plaintiffs’ Fee Request Chart also includes a 6.4 hour entry by Attorney Grogan for “[t]ravel to and conduct settlement conference” on September 27, 2007 and a five (5) hour entry for Attorney Roper to “[a]ttend settlement conference” dated September 26, 2007. (Fee Request Chart, at 4.) But the parties’ submissions do not make clear where this conference was held – and thus how
28

(1) On April 17, 2007, 7.2 hours for Mr. Grogan’s “[t]rip to Hazelton and WilkesBarre to make final application” for Plaintiff’s marriage license. (Id. at 2.) Mr. Grogan and the Plaintiffs made their application at the Defendant’s office in Wilkes-Barre. (Mem. & Order, May 1, 2007, Doc. 24, at 2.) The Court takes note that the estimated travel time from Attorney Grogan’s office at 1717 Arch Street in Philadelphia to Wilkes-Barre is exactly two (2) hours, according to the website Mapquest. (See http://www.mapquest.com). This trip represents four (4) hours of travel time.
(2) On April 23, 2007, 9.4 hours for Attorney Grogan’s trip to “[m]eet w/ clients in West Hazelton.” (Fee Request Chart, at 3.) The Court takes note that the estimated travel time from Attorney Grogan’s office to West Hazelton is one (1) hour and fifty-two (52) minutes, according to the website Mapquest. (See http://www.mapquest.com). This trip represents three (3) hours and forty-four (44) minutes of travel time.
(3) On April 25, 2007, 3.7 hours by Mr. Diver for “[t]ravel to Hazelton / hearing strategy w/ Grogan,” and 13.4 hours by Mr. Grogan to “[p]repare for court hearing; travel to NE Penna, meet with clients.” Plaintiffs request compensation for each of these attorneys’ return trips in entries dated April 26, 2007, which cover both travel and attendance at the hearing. Plaintiffs also request compensation for Attorney Roper’s travel both to and from Scranton for the hearing as part of a larger entry for her work, dated April 26, 2007. (Fee Request Chart, at 3.) The Court takes note that the preliminary injunction hearing, which all three (3) attorneys attended, was held at the
much of this time was travel time – and Defendant has not made objections to this trip as she has to the others. Therefore, the Court will make no reductions to these entries.
29

federal courthouse located at 235 North Washington Avenue, Scranton. (See Order, Apr. 19, 2007, Doc. 9.) According to the website Mapquest, it takes two (2) hours and nine (9) minutes to travel to the Scranton courthouse from these attorneys’ Philadelphia offices. (See http://www.mapquest.com). This trip thus represents four (4) hours and eighteen (18) minutes of travel time by each of the three (3) attorneys.
(4) On May 2, 2007, for travel to and from Wilkes-Barre and for assisting Plaintiffs in obtaining their marriage license, Plaintiffs request 7.7 hours for Attorney Grogan. (Fee Request Chart, at 4.) As noted above, Attorney Grogan’s travel time to Wilkes-Barre is estimated to be two (2) hours. This trip thus represents four (4) hours of travel time.
Based on the foregoing, the Court will deduct four (4) hours and eighteen (18) minutes, or 4.3 hours of travel time from each Attorney Roper and Attorney Diver, and will deduct sixteen (16) hours and two (2) minutes, or 16.03 hours of travel time from Attorney Grogan.
G. Exercise of Billing Discretion Defendant submits that all time deducted by Plaintiffs in the “exercise of billing discretion” is not “a gesture of magnanimity,” but rather represents time that would not have been recoverable in any case. Further, Defendant argues that, in the exercise of billing judgment, further reductions should have been made. (1) First, Defendant challenges 1.6 hours requested for Mr. Diver’s time spent preparing for the May 2, 2007 trip to accompany Plaintiffs to the Register of Wills. (Def.’s Response, Doc. 48 ¶ 77.) Mr. Diver and Mr. Grogan both accompanied Plaintiffs on that day, but Plaintiffs did not request compensation for Mr. Diver’s travel time, only for the 1.6
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hours of preparation. Defendant argues that just as it would have been duplicative to request Mr. Diver’s travel time on that day, it is duplicative to request compensation for time he spent planning the trip. (Id. ¶ 76 n.4.) The description of Mr. Diver’s time on that day indicates he spent the 1.6 hours “[p]lan[ing] trip to Hazelton for license” and in a t[elephone] c[all] w[ith] Mahoney,” who is Defendant Stankovic’s attorney. (Fee Request Chart, at 4.) No time entries for Attorney Grogan indicate that he duplicated these tasks; Attorney Grogan billed only for the trip itself. (See id.) As there is no evidence of duplicative work, no reduction will be made.
(2) Second, Defendant argues that one reduction Plaintiffs made was not calculated with sufficient specificity to eliminate all non-recoverable time: One of the tasks for which Plaintiffs are not seeking fees is preparation of a class action complaint, which they had contemplated filing in this case. Two (2) time entries of Attorney Grogan, 2.6 hours on April 5, 2007 and 4.3 hours on April 9, 2007, reflect time spent “Draft[ing] individual and class complaints.” (See Fee Request Chart, at 1.) As these time entries cover both complaints, Plaintiffs reduced the hours by half. (See id.) Defendant argues that “it is impossible to determine whether the Plaintiffs’ reduction fairly eliminates all of the time spent drafting the Class Action Complaint.” (Def.’s Response, Doc. 48 ¶ 76.) But Defendant demands more specificity than is required. A petition need not demonstrate “the exact number of minutes spent nor the precise activity to which each hour was devoted.” Washington, 89 F.3d at 1037. No further reduction is necessary.
(3) Third, in response to Defendant’s general objection that Plaintiffs should have delegated more work to junior attorneys, Plaintiffs state that no such attorneys were
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available. (Pls.’ Reply Br., Doc. 51, at 12.) With the exception of some special consultation work by Attorney Kreimer and the out-of-town ACLU IRCP attorneys, this case was litigated by the core team of Attorney Roper of the ACLU of Pennsylvania and Attorneys Grogan and Diver of Langer, Grogan & Diver, P.C. At the time of this litigation, “the ACLU had only one staff attorney junior to Ms. Roper, and that attorney practices in the Pittsburgh office and had a full caseload there.” (Id.) And “Mr. Diver was and remains the junior member of his firm.” (Id.) In light of this information, no reductions will be made based on Defendant’s general objection to the staffing of this case.
IV. Preparation of the Fee Petition Reasonable attorney’s fees expended in litigating a fee petition are recoverable.
See Planned Parenthood of Cent. N.J. v. Attorney Gen. of State of N.J., 297 F.3d 253, 268 (3d Cir. 2002); Pawlak v. Greenawalt, 713 F.2d 972, 983-84 (3d Cir. 1983). However, “[t]he Supreme Court has cautioned that fee applications should not devolve into a second litigation.” Moore v. Susquehanna Area Reg’l Airport Auth., No. 1:02-CV0535, 2005 WL 24307090, at *20 (M.D. Pa. Sept. 30, 2005) (citing Hensley, 461 U.S. at 437). Where a court finds that the number of hours charged are excessive, the court may reduce the number of hours claimed to reflect a reasonable amount of time. See Good Timez, Inc. v. Phoenix Fire & Marine Ins. Co., 754 F. Supp. 459, 464 (D.V.I. 1991). The Third Circuit Court of Appeals has indicated that “[t]he fee petition litigation . . . is a separate entity subject to lodestar and Hensley reduction analysis” and that district courts should “consider whether these services [in litigating fee disputes] require the same
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quality of expertise and skill as the underlying dispute.” Windall, 51 F.3d at 1190 (internal quotation marks omitted).
Plaintiffs’ composite time sheet includes 0.25 hours by Attorney Kreimer, 14.9 hours by Attorney Roper, and twenty-seven (27) hours by Attorney Grogan, (a total of 42.15 hours) spent compiling time records, researching, drafting, editing, discussing and preparing supporting declarations for the Fee Petition. (See Fee Request Chart.) Defendant objects to this time as excessive and provides “no[n] exclusive” examples of unreasonable entries. (See Def.’s Response, Doc. 48 ¶ 71; Pace Decl., Ex. 2 to Doc. 48.) First, Defendant objects that because many of the same attorneys had prepared their fee petition in the separate Lozano case, “most of the research regarding the standard for awarding attorneys fees” was already completed and easily accessible to Plaintiffs’ attorneys for use in this Fee Petition. (Def.’s Response, Doc. 48 ¶ 71.) Of the hours spent preparing the Fee Petition, however, only 3.2 hours, as listed, were expended on research, specifically “[r]esearch[ing] fee petition case law in 3rd Circuit.” (See Ex. 1 to Roper Suppl. Decl., at 5.) Even in light of recent similar research having been done by some of Plaintiffs’ attorneys, this amount of time is not excessive.
Second, Attorney Grogan spent 17.4 hours “draft[ing] [the] fee petition, and 6.4 hours “[r]evis[ing] [the] fee petition draft.” (Fee Request Chart.) And third, Attorney Roper spent 1.6 hours “prepa[ing] [her] CV for defense counsel.” (Id.) According to Defendant, these entries “illustrate” the unreasonableness of Plaintiffs’ time entries, but Defendant has not suggested what a reasonable amount of time for preparation of the Fee Petition would have been. (See Pace Decl., Ex. 2 to Doc. 48.)
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In Enright v. Springfield Sch. Dist., also a civil rights case, the United States District Court for the Eastern District of Pennsylvania reduced by one-third the 15.9 hours that the plaintiff’s attorneys spent preparing the fee petition because “while admittedly lengthy,” the petitions were “not so complex or unusual as to justify nearly two full days of attorney time, particularly when one considers that the process of pulling the billing summaries and compiling them could easily be performed by a secretary or paralegal.” No. 04-CV-1653, 2008 WL 696845, at *4 (E.D. Pa. Mar. 13, 2008) (Joyner, J.). Similarly, in Lewis v. Babbit, a Title VII case in which the “fee petition relies upon well settled law and the main exhibit, the record of hours spent, has been prepared on an ongoing basis by Lewis’ attorney,” the court found that twenty (20) attorney hours and nineteen (19) law clerk hours were an excessive amount of time for preparation of the fee petition. See No. Civ. A. 97-CV-7576, 1999 WL 551878, at *2 (E.D. Pa. June 11, 1999) (Kelly, J.) While the court awarded all of the nineteen (19) requested hours of law clerk time, it reduced the attorney’s time to the equivalent of two (2) partner hours and eight (8) associate hours. Id. In a third case, Brown v. Continental Cas. Co., the court held that 24.75 hours preparing the fee petition in an ERISA case was “plainly excessive,” as “[a]n attorney litigating an ERISA claim in the number of hours, at the hourly rates, requested here [two hundred twenty-five dollars ($225) per hour], should require only minimal time to research and craft the legal argument necessary to support a request for attorney fees.” No, Civ. A. 99-6124, 2005 1949610, at *4 (E.D. Pa. Aug. 11, 2005) (Pollack, J.). The court concluded also that the task “requires no legal skill” and while it did not reduce the attorney’s hourly rate, it did reduce the time awarded for preparation of the fee petition to
34

five (5) hours. Id. In the instant case, it cannot be said that the task of preparing the Fee Petition
“requires no legal skill,” particularly as the Petition included legal arguments regarding the use of out-of-forum attorneys, and other tasks involved were appropriate for attorneys to perform, such as redacting privileged information from time records requested by defense counsel and discussing reductions with co-counsel. (See Fee Request Chart.)
On the other hand, in light of the cases above, 42.15 hours, particularly when billed at the rate of three hundred fifty dollars ($350) per hour, is an excessive amount of time for preparation of a fee petition. As such, the Court will reduce by one-third the 14.9 hours expended by Attorney Roper and the twenty-seven (27) hours expended by Attorney Grogan in preparing the Fee Petition, thus subtracting 4.96 hours from Ms. Roper’s fee and nine (9) hours from Mr. Grogan’s fee. The total award for all attorneys for preparation of the Fee Petition will be 19.24 hours.
V. Calculation of Fees The lodestar figures for each attorney are as follows: (1) Attorney Roper requested compensation for 75.6 hours, and the Court will
deduct 4.96 hours as excessive time spent on the Fee Petition and 4.3 hours as uncompensable travel time. Attorney Roper’s lodestar, calculated at two hundred ninety dollars ($290) per hour, times 66.34 hours, equals nineteen thousand, two hundred thirtyeight dollars and sixty cents ($19,238.60). The Court will award this amount for Attorney Roper.
35

(2) Attorney Grogan requested compensation for 152.05 hours, and the Court will deduct 11.55 hours for preparation of the Complaint, nine (9) hours for preparation of the Fee Petition, and 16.03 hours for uncompensable travel time. Attorney Grogan’s lodestar, calculated at two hundred ninety dollars ($290) per hour, times 115.47 hours, equals thirty three thousand, four hundred eighty-six dollars and thirty cents ($33,486.30). The Court will award this amount for Attorney Grogan.
(3) Attorney Diver requested compensation for 128.1 hours, and the Court will deduct 9.1 hours as excessive time spent on general research and 4.3 hours as uncompensable travel time. Attorney Diver’s lodestar, calculated at two hundred sixty dollars ($260) per hour times 114.7 hours, equals twenty-nine thousand, eight hundred twenty-two dollars ($29,822). The Court will award this amount for Attorney Diver.
(4) Attorney Jadwat requested compensation for 8.6 hours, and the Court will make no reductions to this time. Attorney Jadwat’s lodestar, calculated at one hundred eighty dollars ($180) per hour times 8.6 hours, equals one thousand, five hundred fortyeight dollars ($1548). The Court will award this amount for Attorney Jadwat.
(5) Attorney Chang requested compensation for 4.4 hours, and the Court will make no reductions to this time. Attorney Chang’s lodestar, calculated at one hundred sixty dollars ($160) per hour times 4.4 hours, equals seven hundred and four dollars ($704). The Court will award this amount for Attorney Chang.
(6) Attorney Kreimer requested compensation for four (4) hours, and the Court will make no reductions to this time. Attorney Kreimer’s lodestar, calculated at three hundred dollars ($300) per hour, times four (4) hours, equals one thousand, two hundred dollars ($1200). The Court will award this amount for Attorney Kreimer.
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VI. Costs As prevailing parties, Plaintiffs are entitled to costs under Federal Rule of Civil
Procedure 54(d)(1). Furthermore, the costs that Plaintiffs may recover “are not limited to the costs taxable under Rule 54(d)(1) and 28 U.S.C. § 1920,” because “‘prevailing parties in civil rights cases are generally entitled to recover any reasonable costs associated with litigating their claims, provided that the costs are necessary and properly documented.’” Petrunich v. Sun Bldg. Sys., Inc., No. 3:CV-04-2234, 2008 WL 974574, at *8 (M.D. Pa. Apr. 7, 2008) (quoting Kratzer v. Wegman’s Rest., LLP, No. Civ. A. 04-5889, 2005 WL 2847320, at *3 (E.D. Pa. Oct. 27, 2005)).
Plaintiffs documented their costs, totaling one thousand, eight hundred fifteen dollars and fifty-nine cents ($1815.59) in Exhibit C to the declaration of Attorney Grogan (Client Expense Report, Ex. C to Ex. 3 to Doc. 45.) These costs claimed consist of expenditures for delivery services, transcripts, subpoena services, and travel. The travel costs, specifically, consist of car rentals, gas at forty-four cents ($0.44) per mile, and hotel costs for out-of-town attorneys meeting with Plaintiffs and attending court proceedings. These costs are recoverable. See Bowers v. Foto-Wear, Inc., No. 3:CV03-1137, 2007 WL 4086339, at *5 (M.D. Pa. Nov. 15, 2007) (approving cost of attorney travel to depositions and similar events based on simple listing of costs, without requiring receipts; characterizing such costs as “routinely allowed,”); Leipziger v. Twp. of Falls, No. Civ. A. 00-1147, 2001 WL 1167488, at *1 (E.D. Pa. July 31, 2001) (allowing recovery of attorney hotel cost in civil rights action); In re Safety Components, Inc. Sec. Litig., 166 F. Supp. 2d 72, 108 (D.N.J. 2001) (same). As Defendant has not made specific objections
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to any of the costs listed in Plaintiffs’ Client Expense Report, they will be allowed, and Plaintiffs will be awarded one thousand, eight hundred fifteen dollars and fifty-nine cents ($1815.59) in costs.

CONCLUSION

For the foregoing reasons, Plaintiffs’ Petition will be granted as noted in the Order

which follows.

August 27, 2008 Date

/s/ A. Richard Caputo A. Richard Caputo United States District Judge

38

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

HEATHER BUCK and JOSE GUADELUPE ARIA-MARAVILLA
Plaintiffs,
v.

CIVIL ACTION No. 3:07-CV-0717 (JUDGE CAPUTO)

DORTHY STANKOVIC, Register of Wills for Luzerne County, (in her individual and official capacities),

Defendant.

ORDER Now, this 27th day of August, 2008, it is HEREBY ORDERED that Plaintiffs’ Petition for attorneys’ fees and costs is GRANTED as follows:

(1) Plaintiffs are awarded counsel fees as follows: (a) For Mary Catherine Roper, of the ACLU of Pennsylvania: nineteen thousand, two hundred thirty-eight dollars and sixty cents ($19,238.60). (b) For John Grogan, of Langer, Grogan, and Diver, P.C.: thirty three thousand, four hundred eighty-six dollars and thirty cents ($33,486.30). (c) For Edward Diver, of Langer, Grogan, and Diver, P.C.: twenty-nine thousand, eight hundred twenty-two dollars ($29,822).

(d) For Omar Jadwat, of the ACLU Foundation Immigrants’ Rights Project based in New York: one thousand, five hundred forty-eight dollars ($1548).
(e) For Jennifer Chang, of the ACLU Foundation Immigrants’ Rights Project based in San Francisco: seven hundred and four dollars ($704).
(f) For Seth Kreimer, of the University of Pennsylvania Law School: one thousand, two hundred dollars ($1200).
(2) Plaintiffs are awarded costs in the amount of one thousand, eight hundred fifteen dollars and fifty-nine cents ($1815.59).
/s/ A. Richard Caputo A. Richard Caputo United States District Judge

 
 Case 3:07-cv-00717-ARC Document 45 Filed 03/27/08 Page 1 of 33

UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF PENNSYLVANIA

_______________________________

:

HEATHER BUCK and

:

JOSE GUADELUPE

:

ARIAS-MARAVILLA,

:

: CIVIL ACTION

Plaintiffs,

: No. 03:07-cv-717 ARC

:

v.

:

:

DOROTHY STANKOVIC, Register : ELECTRONICALLY

Of Wills for Luzerne County,

:

FILED

(in her individual and official

:

capacities)

:

:

Defendant.

:

______________________________ :

PLAINTIFFS’ PETITON FOR ATTORNEYS’ FEES AND COSTS PURSUANT TO 42 U.S.C. § 1988
Plaintiffs, by and through their undersigned attorneys, submit this petition for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988. In support of their petition, Plaintiffs aver as follows:
Introduction 1. Over the course of three weeks in April 2007, Plaintiffs’ counsel investigated, prepared, filed and presented evidenced at a preliminary injunction hearing on Plaintiffs’ claims that Defendant’s policy of refusing a marriage license to foreign nationals who could not prove their lawful

Case 3:07-cv-00717-ARC Document 45 Filed 03/27/08 Page 2 of 33
presence in the United States violated their right to marry and was preempted by the federal immigration laws. On May 1, 2007, this Court issued a preliminary injunction compelling Defendant to issue the Plaintiffs a marriage license without regard to Mr. Arias-Maravilla’s immigration status, finding that Plaintiffs were likely to succeed on their claim under 42 U.S.C. § 1983 that Defendant’s policy violated their constitutional right to marry and that Plaintiffs would be irreparably harmed if the injunction did not issue. Buck v. Stankovic, 485 F. Supp. 2d 576 (M.D. Pa. 2007). The Court concluded that Defendant’s policy impermissibly “denie[d] the fundamental rights of an undocumented alien and his citizen fiancé to marry.” Id. at 584. Because of the Court’s decision, the Plaintiffs were able to marry on May 7, before Mr. Arias-Maravilla was required to return to Mexico.
2. Following that decision, the parties pursued settlement and ultimately negotiated a Consent Order that was entered by this Court on February 11, 2008. That Consent Order gives Plaintiffs full relief on their claims and, in fact, provides additional relief that Plaintiffs could not have obtained by pursuing the case through trial. In particular, the Consent Order requires Defendant to amend her policy for all marriage applicants, not just Plaintiffs – relief that Plaintiffs had no standing to pursue once they obtained
2

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their own marriage license in accordance with the Court’s preliminary injunction.
3. Plaintiffs thus are “prevailing parties” within the meaning of 42 U.S.C. § 1988 and now seek a “reasonable attorney's fee” pursuant to that statute.
4. This case was of unusual public importance. The case resolved an open constitutional question, i.e., whether an undocumented alien has a constitutional right to marry. The Court’s published decision has been widely reported in the relevant literature and, despite being less than a year old, has already been the subject of academic commentary. See Rachel F. Mora, Loving and the Legacy of Unintended Consequences, 2001 Wisconsin Law Review 239 (2007) and Christopher D. Nelson, Comment, Protecting the Immigrant Family: The Misguided Policies, Practices and Proposed Legislation Regarding Marriage License Issuance, 4 Univ. St. Thomas Law Review 643 (2007).
5. The case was also the subject of considerable media attention, arising as it did against the back drop of the efforts of certain local officials to impose a broad scheme of regulation on the immigrant community in the City of Hazelton, which had been extensively covered in the local and national press. See, e.g., Julia Preston, Illegal Immigrants Right to Wed,
3

Case 3:07-cv-00717-ARC Document 45 Filed 03/27/08 Page 4 of 33
New York Times, (May 2, 2007); Shannon P. Duffy, No Wedding Bell Blues, Legal Intelligencer (May 4, 2007).
6. Most importantly, of course, the case had profound significance for the Plaintiffs themselves. As a direct result of Defendant’s policy, Plaintiffs Heather Marie Buck and Jose Arias-Maravilla were barred from marrying despite the fact that they had otherwise satisfied all of the statutory requirements for a marriage license, had a child together, had lived together for nearly 18 months and strongly desired to formalize and solemnize their relationship in their home community and among their friends and family before Mr. Arias was required to return to Mexico pursuant to an order of voluntary departure issued by a United States Immigration Judge. Because of the Court’s Order, they were able to obtain a marriage license the day after the Order issued. A few days later, they were able to unite their family by formal bonds of marriage before Mr. Arias was forced to leave the United States for Mexico.
7. The Court’s Order preliminarily enjoining Defendant’s policy capped an intensely concentrated period of preparation and litigation. Plaintiffs’ strategy and efforts were dictated by the knowledge that the preliminary injunction proceeding would be of dispositive importance in this litigation because Plaintiff Jose Arias-Maravilla was under an ironclad order
4

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to depart from the United States and report to a United States consulate in Mexico by May 12, 2007. Plaintiffs’ counsel knew that if they failed to secure relief at the preliminary injunction stage, little else would matter as Mr. Arias would have to leave the country long before any trial on the merits could be obtained.
8. Accordingly, Plaintiffs’ counsel – a team of private attorneys, attorneys for the American Civil Liberties Union of Pennsylvania (“ACLU”), the national ACLU’s Immigration Right’s Project, and a law professor from the University of Pennsylvania – were compelled to expend a large amount of professional time in the space of a few weeks. Some members of the team had virtually to halt work on any other matter to ensure that this case was properly presented to the Court.
9. Plaintiffs’ counsel’s task was all the more challenging because the case raised highly complex issues at the intersection of constitutional and immigration law. Substantively, in addition to the core constitutional issues, the case also raised issues of abstention, federal preemption and constitutional remedies. All of these issues were framed against a complex background of immigration law and the state law regarding marriage. Procedurally, Plaintiffs’ counsel faced a number of critical strategic decisions such as whether the case should be brought as a class action and
5

Case 3:07-cv-00717-ARC Document 45 Filed 03/27/08 Page 6 of 33
whether, given likely abstention arguments (which were, in fact, raised by Defendant), the case should be brought in state or federal court. All of those issues and strategic decisions had to be identified, analyzed and resolved within the short time frame imposed by Mr. Arias’ obligation to leave the United States by May 12, 2007.
10. In spite of those challenges, Plaintiffs prevailed decisively. 11. The clarity and force of the Court’s May 1, 2007 ruling effectively ended the active portion of the case and set the stage for negotiations between the parties that resulted in a consent decree entered on February 11, 2008.1 12. Plaintiffs are indisputably prevailing parties and are entitled to a fully compensatory attorneys’ fee award. Accordingly, the Plaintiffs respectfully request that the Court issue an award for fees of $ 124,579.00 and $1815.59 in costs. 13. The fee award sought by the Plaintiffs is reasonable in every respect. As evidenced by the history of the case as set forth herein and the
1 As is reflected in Plaintiffs counsel’s billing records submitted with this Petition, Plaintiffs’ counsel expended very little time in this matter after the preliminary injunction hearing on April 26, 2007 and the immediate posthearing briefing. Aside from one settlement conference in October before the Hon. Thomas M. Blewitt, which both Ms. Roper and Mr. Grogan attended, Ms. Roper alone billed for time associated with negotiating the terms of the Consent Order.
6

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Declarations appended hereto, both the rates charged and the time expended were reasonable. In addition, Plaintiffs have exercised billing judgment in eliminating $13,125.00 in fees. Moreover, despite, the important contributions made to Plaintiffs team by the Director of the ACLU of PA, Witold “Vic” Walczak, a nationally respected civil liberties attorney, Plaintiffs are not seeking compensation for his work, which was largely consultative in nature. As indicated in the attached declarations from attorneys working in the Philadelphia legal market and from recent cases applying Philadelphia market rates, counsel’s rates are well within, indeed on the low end of, the prevailing market rates in the legal community in which those attorneys practice.
14. The Petition is further supported by contemporaneous billing records that detail the scope of the work performed by these attorneys and which amply demonstrate that that work was conducted with great efficiency under difficult conditions.
Factual Background 15. The difficulties inherent in this litigation were three-fold: (1) the speed at which it had to be brought and successfully resolved; (2) the unusual complexity of the legal and procedural issues involved; and (3) the marked intransigence of the Defendants. Those three factors dictated the
7

Case 3:07-cv-00717-ARC Document 45 Filed 03/27/08 Page 8 of 33
course of Plaintiffs’ legal strategy and in large measure determined the composition of the legal team assembled and the manner in which that team worked.
16. Plaintiffs, Heather Buck, a United States citizen and a resident of Luzerne County, and Jose Arias-Maravilla, a citizen of Mexico and the father of Ms. Buck’s child, then living without legal authorization in Luzerne County, first attempted to obtain a marriage license in March 2007. Verified Complaint at ¶ 26. There was considerable urgency to their application. Mr. Arias was under an irrevocable order from Immigration Judge Walter A. Durling to voluntarily depart from the United States before May 12, 2007. 485 F. Supp. 2d at 579.
17. Plaintiffs first learned of Defendant’s policy regarding proof of lawful residence through persons working at a local district justice’s office where they had gone to seek a marriage license. Verified Complaint at ¶ 35. Plaintiffs consulted with their immigration counsel at that time, who in turn confirmed the existence of the policy with an attorney for Defendant’s office. Verified Complaint at ¶ 39. In discussion with Defendant’s attorney, Plaintiffs’ immigration counsel expressed his view that Defendant’s policy was unconstitutional and asked Defendant to issue a marriage license to the
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Plaintiffs. Those overtures were rebuffed. Verified Complaint at ¶40. At that point, Plaintiffs contacted the ACLU of Pennsylvania.
18. Defendant had an opportunity to this stage to resolve the matter without the cost of litigation. She spurned that opportunity.
19. Convinced that the Defendant’s policy was unconstitutional and concerned that a similar policy was in place in counties other than Luzerne, the ACLU assembled a litigation team capable of and willing to bring litigation against the Defendant. The case required attorneys capable of handling the complex legal and procedural issues in play and willing to bring the case in the shortest possible time frame. See Walczak Dec. ¶ 8 and infra.
20. Once the legal team was assembled, it determined that an overture should be made to the Defendant to try to work out a change in her policy without litigation. To that end, Ms. Roper and Mr. Grogan contacted the attorney for the Defendant, Mr. Michael Hudacek, Jr. That conversation ended abruptly with Mr. Hudacek again refusing to discuss resolution of the Plaintiffs’ case.
21. Defendant thus has a second opportunity to resolve this matter without the cost of litigation. She again spurned that opportunity.
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22. At that point, Plaintiffs had not yet formally presented their application directly to the Defendant’s office in Wilkes Barre. As noted in the Court’s opinion, on April 17, 2007, the Plaintiffs, accompanied by Mr. Diver and Mr. Grogan, presented themselves to Mr. Donald Williamson an employee of Defendant at the Defendant’s office in Wilkes Barre and applied for a marriage license. 485 F. Supp. 2d at 579. They offered documentation including Mr. Arias’ passport and the order of voluntary departure compelling him to leave the United States by May 12, 2007. Mr. Williamson refused to look at any of the documentation except for Mr. Arias’ passport, which he skimmed looking for a visa stamp that would indicate that Mr. Arias’ was present in the United States lawfully. Not finding that stamp, Mr. Williamson denied the Plaintiffs’ application although he would later testify that he had no doubts that Mr. Arias was the man pictured in the passport photo. 485 F. Supp. 2d at 579.
23. Defendant thus rejected a third opportunity to resolve the case without litigation.
24. On April 17, 2007, Plaintiffs filed suit. The next day, April 18, 2007, they filed a motion seeking a preliminary injunction barring Defendant from enforcing her policy.
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25. Promptly after the filing of the complaint, the Court set a hearing date of April 26, 2007. Throughout the intervening week, Plaintiffs’ counsel, primarily Mr. Grogan and Mr. Diver, prepared the Plaintiffs for their testimony, prepared witness examinations and other aspects of the hearing presentation, and responded to discovery requests made by counsel for the Defendant.
26. The hearing was conducted in Scranton on April 26, 2007. Just prior to the hearing, Defendant filed opposition papers arguing that the Court should abstain from exercising its jurisdiction. Plaintiffs requested and were granted the opportunity to respond and after the hearing drafted a responsive brief on the abstention issue and other issues raised at the hearing. That brief was filed with the Court on April 27, 2007.
27. At the conclusion of the hearing, this Court invited the Defendant to reconsider her position in light of the testimony adduced at the hearing in which Defendant’s employee, Mr. Williamson, conceded that he had no doubts as to the identity of Mr. Arias. see 485 F. Supp. 2d at 579 and Transcript of Proceedings pp. 87-91.2 Defendant again – now for the fourth time - refused to alter her policy thereby requiring additional briefing by Plaintiffs and subjecting the Court to the expenditure of resources necessary
2 The Transcript of the Hearing is appended hereto as Exhibit 1.
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to craft a thorough opinion in a very short time frame. Plaintiffs also suffered the continued anxiety that relief would not be obtained before Mr. Arias had to leave for Mexico.
28. The Court issued its opinion granting the preliminary injunction on May 1, 2007. Because of the time pressures due to Mr. Arias’ voluntary departure order, plans were made to obtain a marriage license the very next day, including seeking judicial relief from the three-day waiting period under the Marriage Law. Mr. Grogan and Mr. Diver traveled to Wilkes Barre to accompany the Plaintiffs through this process, with the assistance of Defendant’s counsel.
29. On May 7, 2007, Plaintiffs were married. 30. Within days, Mr. Arias left for Mexico where he remains today. 31. The Court’s Order of May 1, 2007 effectively ended active litigation in this matter. Shortly thereafter, Ms. Roper reached out to Defendant’s counsel to explore the possibility of settlement without further litigation. Ms. Roper and Mr. Grogan joined with Mr. Mahoney and Mr. Hudacek at a settlement conference in September. That conference was not successful, but shortly thereafter the parties reached a settlement in principle that would not include the resolution of the issue of attorney fees and asked the Court for additional time in which to finalize a consent decree. The final
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Consent Order was submitted to this Court on January 28, 2008. This Court entered that Order on February 11, 2008.
Legal Argument A. Plaintiffs are “Prevailing Parties” Who Have Achieved
Complete Success and Should Be Awarded a Fully Compensable Fee. 32. This is precisely the type of case for which the fee shifting provision of 42 U.S.C. § 1988 was enacted. The purpose of Section 1988 is to “ensure ‘effective access to the judicial process' for persons with civil rights grievances” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R.Rep. No. 94-1558, p. 1 (1976) and S.Rep. No. 94-1011, p. 4 (1976)). Accordingly, “ a prevailing plaintiff’ should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.” Id. See also Truesdell v. Philadelphia Housing Auth., 290 F.3d 159, 163 (3d Cir. 2002). 33. As the Third Circuit confirmed just last week, relief on the merits achieved in the form of a preliminary injunction can confer “prevailing party” status. People Against Police Violence v. City of Pittsburgh, No. 064457, 2008 WL 696894, at *4 (3d Cir. March 17, 2008). This is true where “plaintiffs achieved precisely what they sought on an enduring basis-the
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permanent demise of the challenged [government action] and in its place a system that satisfied plaintiffs' goals.” Id. at *6.
34. A prevailing party is “one who has been awarded some relief by the court” through a court-ordered “material alteration of the legal relationship of the parties.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 604 (2001) (citations and quotations omitted.) See also, Jama Corp. v. Gupta, Civ. No. 99-1574, 2008 WL 10867 at *2 (M.D. Pa. Jan. 4, 2008) (prevailing party is one who “succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit”).
35. The fact that Plaintiffs did not prevail on every claim is irrelevant to assessing fees. “Civil rights actions will often raise many claims arising from ‘a common core of facts’ or ‘related legal theories,’ requiring the District Court to ‘focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.’” Eichenlaub v. Township of Indiana, 214 Fed. Appx. 218, 222 (3d Cir. 2007) (quoting Hensley, 461 U.S. at 435). See also, Tenafly Eruv Association, Inc. v. Tenafly, 195 Fed. Appx. 93, 96 (3d Cir. 2006) (when litigation consists of related claims, plaintiff’s fees should not reduced when some claims were unsuccessful, yet desired outcome is achieved); West
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Virginia University Hospital v. Casey, 898 F.2d 357, 361 (3d Cir. 1990). The Supreme Court in Hensley expressly rejected a “mathematical” approach to fees, in which fee awards would be proportional to the number of successful claims. Id.
36. Plaintiffs have achieved complete success in this litigation. That success is measured not only in terms of the ultimate result, i.e., the change in Defendant’s unconstitutional policy and the substantial damage award to the Plaintiff, but in terms of the speed with which the result was obtained enabling the Plaintiffs to exercise their fundamental right to marry in the United States before Mr. Arias had to leave the country.
37. “Where a Plaintiff has excellent results, his attorney should recover a fully compensable fee.” Hensley, 461 U.S. at 435. “Indeed, ‘the most critical factor’ in determining the reasonableness of a fee award ‘is the degree of the success obtained.” Farrar v. Hobby, 506 U.S. 103, 114 (1992) (citations omitted). Here the success obtained by Plaintiffs was complete and their entitlement to a fully compensable fee award is plain. B. Plaintiffs Should Be Awarded Their Full Request, Which Is Based
On Reasonable Hourly Rates and a Reasonable Number of Hours Expended. 38. The “lodestar” method is used to determine the reasonableness
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of an attorneys’ fee under 42 U.S.C. § 1988. Planned Parenthood of Cent. N.J. v. Attorney Gen. of N.J., 297 F.3d 253, 265 n.5 (3d Cir. 2002). The lodestar is the “number of hours reasonably expended on the litigation multiplied by the reasonable hourly rate.” Hensley, 461 U.S. at 433. the lodestar is “strongly presumed to yield a reasonable fee.” Washington v. Phila. Ct. of C.P. ., 89 F.3d 1031, 1035 (3d Cir. 1996).
1. The Hourly Rates Charged Are Reasonable a. Philadelphia is the Relevant Legal Community
44. The reasonableness of an attorney’s hourly rate is determined by the prevailing market rates charged by attorneys “of reasonably comparable skill, experience and reputation” in the relevant community. Blum v. Stenson, 465 U.S. 886, 895-96 n. 11 (1984); Maldonado v. Houston, 256 F.3d 181, 184 (3d Cir. 2001).
45. The first step in determining the prevailing market rate is determining the “relevant community”. Blum, 466 U.S. at 895. Where local counsel are unwilling to handle a case or where a case requires the “special expertise of counsel from a distant district,” the “relevant community” for determining a prevailing market rate is the forum in which the attorneys regularly practice, not the forum of the litigation. Interfaith
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Comm. Org. Honeywell Int’l. Inc., 426 F.3d 694, 705 (3d Cir. 2005). Both situations apply here.
46. This case arose against the background of existing litigation involving the constitutional rights of immigrants, including undocumented immigrants, filed against the City of Hazelton. See Lozano v. City of Hazelton, 496 F. Supp. 2d 477 (M.D. Pa. 2007). In Lozano, a team of lawyers led by the ACLU of PA challenged a series of anti-immigrant ordinances passed by the city of Hazleton, Pennsylvania. Walczak Dec. at ¶¶ 6-7.3 The Lozano case was filed in late 2006 and soon obtained preliminary injunctive relief. At the time that this case was filed in April 2007, Lozano had been tried before the Honorable James M. Munley of this Court, but no opinion had yet issued. See Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D. Pa. 2007) (decision after bench trial, issued in July 2007). Walczak Dec. at ¶ 6.
47. This case and the Lozano case shared several significant similarities. Both cases involved complex constitutional issues interwoven with federal immigration law. Both cases raised issues of first impression. Both were filed and litigated under extreme time pressure. And in both 3 The Declaration of Witold J. Walczak, Legal Director for the ACLU of PA, is appended hereto as Exhibit 2.
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cases, the ACLU turned to Philadelphia lawyers, rather than Scranton area lawyers, as lead counsel on the case. Walczak Dec. at ¶ 7.
48. The first three factors dictated the last. In both cases, it was necessary for counsel to work intensely under tight deadlines before filing suit to identify and brief the legal theories. Because these were issues of first impression, it was absolutely essential that the work be performed by highly experienced and sophisticated counsel who could work essentially full-time on the case during its development. Walczak Dec. at ¶ 8.
49. In Lozano, the ACLU did use local practitioners for depositions, communications with clients and the examination of some witnesses at trial. (Because this case required success at the preliminary injunction stage or not at all, there was little such work available, unlike in Lozano.) But the bulk of Plaintiffs’ legal research, brief drafting and trial work, which constituted the vast majority of the work in Lozano – as in this case – was handled by non-forum lawyers (which was also how the City of Hazleton managed its side of the litigation).4 Walczak Dec. at ¶ 9.
50. In Lozano, the ACLU found that the intense research and writing required to develop the claims and case theories required more time and expertise than the Scranton-area practitioners could provide. There are
4 As it happens, Mr. Mahoney also represented the Hazleton defendants.
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excellent civil rights lawyers who practice in the Middle District. But the issues in the Lozano case, and in this case, were novel and the relevant law esoteric, particularly the application of the Supremacy Clause and the highly specialized morass that is federal-immigration law. Prosecuting the case required attorneys with diverse expertise, including litigators experienced with complex trial practice before federal courts, civil rights practitioners, immigration-, constitutional- and municipal-law experts. The ACLU was unable to identify any lawyers in the Scranton area with expertise in Supremacy Clause litigation and the intersection of immigration and constitutional law. Walczak Dec. at ¶ 10.
51. Because of its experience in Lozano, when it came time to find cooperating counsel in this case, the ACLU looked to Philadelphia lawyers, John Grogan and Ned Diver of Langer & Grogan (now Langer, Grogan & Diver) as well as ACLU staff attorney Mary Catherine Roper. 5 Walczak Dec. at ¶ 12, 13.
52. But these cases required more than top-shelf litigators – while Mr. Grogan and Mr. Diver had some experience with immigration law, they did not have all the expertise necessary for this case. Therefore, as it had
5 The Declarations of John Grogan, Edward Diver and Mary Catherine Roper, with curriculum vitae attached, are appended hereto as Exhibits 3, 4 and 5.
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done in the Lozano litigation, the ACLU of PA invited the participation of lawyers from the national ACLU’s Immigrants Rights Project (IRP).6 Those lawyers were essential in developing the Plaintiffs’ Supremacy Clause arguments. Walczak Dec. at ¶ 11.
53. Finally, the ACLU was fortunate to be able to consult with Seth Kreimer, the Kenneth W. Gemmill Professor of Law at the University of Pennsylvania, a nationally recognized expert in constitutional litigation, and frequent co-counsel with the ACLU in Pennsylvania.7 Mr. Walczak also consulted on the case. Walczak Dec. at ¶¶ 2, 12.
54. This case did not, like the Lozano case, require the resources of a large firm because the time constraints dictated that the case would focus on the petition for preliminary injunctive relief. But it did require lawyers with expertise in constitutional litigation who could immediately commit themselves to an intensive effort to prepare and pursue a complex case involving novel issues at the intersection of constitutional law, federal immigration regulation and preemption. John Grogan and Ned Diver brought those qualities and, as importantly, a willingness to devote
6 The Declarations of Omar Jadwat and Jennifer Chang of the ACLU Immigrant Rights Project, with curriculum vitae attached, are appended hereto as Exhibits 6 and 7. 7 Professor Kreimer’s Declaration, with curriculum vita attached, is appended hereto as Ex.8.
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themselves to this case to the exclusion of virtually all other work through the preliminary injunction proceedings. A review of the Plaintiffs’ lawyers’ time sheets shows just how indispensable Grogan and Diver were to this litigation. Grogan and Diver led the team in drafting, editing, finalizing and filing nearly all pleadings and motion papers both before and after the preliminary injunction hearing. No Scranton area constitutional law practitioner could have done that. Walczak Dec. at ¶¶ 13-15.
55. The efforts of cooperating counsel are especially notable given the intense controversy that surrounded the topic of immigration at the time. “Illegal immigrants” have been made pariahs in this country, not only by Hazleton Mayor Louis Barletta, but by such high-profile television personalities as CNN’s Lou Dobbs. In the Lozano litigation, several established firms declined to work on the case because of the controversial nature of the issues before the ACLU made contact with Cozen O’Connor. Walczak Dec. at ¶ 16.
56. The esoteric legal issues involved in this unprecedented case, combined with the unpopularity of the clients, transformed this litigation into one where out-of-forum lawyers were essential, thereby justifying the payment of home-town rates. But for the efforts of the private lawyers and public-interest-law groups involved in prosecuting this matter, Plaintiffs
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would not have been able to challenge Defendants’ unconstitutional policy of restricting marriage licenses to persons she deemed to have appropriate immigration status and Plaintiffs would have been unable to marry. Walczak Dec. at ¶ 17.8
51. Numerous courts have recognized the reasonableness of retaining lawyers from distant locations to litigate cases where local counsel are either not willing to do so or lack the necessary expertise and have consequently ordered those attorneys compensated in accordance with the prevailing market rates in their own legal communities. See, e.g., Interfaith, supra. (Recognizing reasonableness of using counsel from District of Columbia where forum counsel were not likely to take on the matter); Jama, supra at * 5 (use of New York rates for case litigated in Scranton). Church of the Am. Knights of the Ku Klux Klan v. City of Erie, No. Civ. A. 98-337, 2000 WL 33201872, at *6-7 (W.D. Pa. Nov. 24, 1998) (recognizing need to utilize Pittsburgh counsel to represent highly controversial party in a matter litigated in Erie); Charles Q. v. Houstoun, No.1: CV-95-280, 1997 WL
8 It bears noting that in order to defend this case, Defendant herself looked outside the forum and retained a Philadelphia law firm, Deasey, Mahoney & Bender to represent her.
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827546, at *3 (M.D. Pa. Sept. 30, 1997) (recognizing reasonableness of

using Philadelphia counsel in matter litigated in Harrisburg.).

57. As it was, the team that was brought together included lawyers

based in Philadelphia (Roper, Grogan, Diver and Kreimer), Pittsburgh

(Walczak), New York (Jadwat) and San Francisco (Chang). Mr. Jadwat and

Ms. Chang could reasonably seek compensation for their time at the rates

customary in their areas – which are far higher than Philadelphia rates – but

have reduced their rates to conform to Philadelphia area rates for the

purposes of this petition. Jadwat Dec. at ¶¶ 6-7; Chang Dec. at ¶¶ 8-9.

b. The Hourly Rates Charged Are Well Within the Prevailing Market Rates in the Philadelphia Legal Community.

58. The hours expended and rates charged by Plaintiffs’ counsel are as follows:9

Lawyer Kreimer Grogan Diver Roper Jadwat Chang TOTAL

Time

Rate

4.00 385

162.40 350

155.30 300

75.60 350

17.10 300

4.40 260

418.8

Total 1540.00 56840.00 46590.00 26460.00 5130.00 1144.00 137,704.00

9 These are not the amounts for which Plaintiffs seek reimbursement. As discussed below, Plaintiffs have reduced their fee request by almost 10% through the exercise of billing judgment.
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59. These rates are well within the prevailing market rates for Philadelphia – indeed, in many instances they are lower than market rates.
60. As demonstrated below, the reasonableness of these fees is established by the declarations of Edward Posner and Francis Patrick Newell, as well as prior cases regarding the current prevailing rates in the Philadelphia legal community.10 See Washington v. Philadelphia County Ct. of Comm. Pl., 89 F.3d 1031, 1036 (3d Cir.1996). ( “If the party seeking fees makes a prima facie case for the reasonableness of the requested rate, the burden shifts to the opposing party to produce evidence to the contrary.”)
61. All of Plaintiffs’ counsel are highly qualified and distinguished lawyers, with significant expertise in their respective areas of practice. See Curriculum Vitae attached to Exs. 3-8 and Posner Dec. Their rates charged by Plaintiffs’ counsel are reasonable and are well within the prevailing market rates in the Philadelphia legal community.
62. For the private attorneys on the Plaintiffs’ legal team, – Mr. Grogan and Mr. Diver – the rates reflect the actual billing rates of their firm at the time the work was performed.11 See Grogan Dec. at ¶ 8; Diver Dec. at
10 The Declarations of Edward Posner and Francis Patrick Newell are appended hereto as Exhibits 9 and 10. 11 The actual billing rates for both Mr. Langer and Mr. Grogan have increased since the bulk of the work in this matter was accomplished. Plaintiffs are entitled to seek an attorneys fee award based on the actual
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¶ 6. These actual billing rates are the best evidence of a prevailing market rate. See Keenan v. City of Phila., 983 F.2d 459, 475 (3d. Cir. 1992).
63. Ms. Roper is an employee of the ACLU of Pennsylvania and does not charge her clients in the manner that a private attorney would. Her rate, however, is the standard rate at which she charges for her time in connection with attorneys fees under 42 U.S.C. § 1988, see Roper Dec. at ¶ 7, and she is entitled to base the reasonableness of that rate on the prevailing market rates for attorneys with her level of skill, experience and reputation practicing in the private legal services market. See Blum, 465 U.S. at 89596, see also Student Pub. Interest Research Group v. AT&T Bell Labs., 842 F.2d 1436, 1450 (3d. Cir. 1988) (holding that public interest firms that typically charge clients below-market fees, or no fees at all, are nonetheless entitled to compensation based on prevailing marker rates in the relevant community).
64. The rates sought by the Plaintiffs are fully commensurate with prevailing market rates for attorneys with similar skill, experience and reputation. As noted, the rate for Professor Kreimer is substantially below
market rates of their attorney at the time the petition is filed. See Lanni v. New Jersey, 259 F.3d 146, 149 (3d Cir.2001) (“When attorney's fees are awarded, the current market rate, defined as ‘the rate at the time of the fee petition,’ must be used.) (internal citation omitted). Plaintiffs’ petition, however, seeks only the rate at the time the work was done.
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market. The rate of $350 per hour for Ms. Roper and Mr. Grogan is well within the reasonable range for partners of their experience and expertise at Philadelphia law firms. Mr. Diver’s rate of $300 is also well-within the range of senior associates at Philadelphia firms. Posner Dec. at ¶¶ 7-15; Newell Dec. at ¶¶ 3-5.
65. The reasonableness of Plaintiffs’ rates are further established by the range of rates for the Philadelphia area legal market awarded in other recent litigation. See, e.g., Jefferson v. City of Camden, 2006 WL 1843178, * 16 (D.N.J.2006) (awarding $375 an hour); Butler v. Frett, 2006 WL 1806412, *7 (D.N.J.2006) (finding $375 an hour reasonable); Barrett v. West Chester University of Pennsylvania of State System of Higher Education, 2006 WL 859714, *4 (E.D.Pa.2006) (finding $400 an hour reasonable for senior litigator). They are also consistent with other markets in Pennsylvania. See, e.g., Choike v. Slippery Rock Univer., Civ. No. 06622, 2007 WL 3120097, at *4 (W.D. Pa. Oct. 22, 2007) (finding requested rate of $385 per hour and $350 per hour reasonable and indicative of prevailing rates in Western District of Pennsylvania); Ferczak v. Woodruff Family Services, Civ. No. 01-1898, 2007 WL 951439, at * 2 (W.D. Pa. Mar. 26, 2007) (finding $350 hourly rate reasonable for Pittsburgh market).
66. The rates requested by Plaintiffs attorneys are more than
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reasonable given the prevailing market rates in Philadelphia and the skill, experience and reputation of those attorneys.
2. The Time For Which Plaintiffs Seek Compensation Is Reasonable.
67. Plaintiffs are entitled to recover fees and costs for all of the hours that their lawyers reasonably spent. Hensley, 461 U.S. at 433. Compensation should be awarded for work that is “useful and of a type ordinarily necessary to secure the final result obtained from the litigation.” Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 560-61 (1986).
68. Plaintiffs’ counsel have prepared declarations, attaching time sheets and curriculum vitae, all of which are attached as Exhibits and are incorporated in this Petition by reference. See Exhibits 3-8.
69. The hours devoted to this case by each lawyer are detailed in the lawyer’s declarations and attached time sheets. All of the lawyers engaged on Plaintiffs’ behalf maintained contemporaneous time records. As a general rule, all Plaintiffs’ counsel applied the same billing principles and discretion that they normally apply to fee paying clients.
a. The Hours Expended Were Reasonable and Necessary 70. The hours expended by Plaintiffs’ counsel indicate that they prosecuted this case in an efficient and cost effective manner. They
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undertook only the work that was necessary to obtain their clients’ objective within the time frame under which they were working.
71. The time pressures under which Plaintiffs’ counsel were working demanded that they worked efficiently. There was simply no time for redundant or unnecessary work.
72. The only time for which counsel seek compensation for work not directly related to the prosecution of the case is for travel time to and from the Scranton area. Travel time is fully compensable at full hourly rates. See Planned Parenthood, 297 F.3d 267-68 (3d Cir. 2002).
73. As explained above and confirmed by the declarations of Mr. Walczak and Mr. Posner, this case required an intensive effort prior to and immediately following the preliminary injunction hearing. That time was well, and reasonably spent. Posner Dec. at ¶ 16.
b. Plaintiffs’ Counsel’s Exercise of Billing Discretion 74. As explained above and confirmed by the declarations of Mr. Plaintiffs’ requested lodestar amount represents only about 90% of the actual attorneys’ fees expended in this litigation. 75. In addition to the decision not to seek payment for the time spent on the case by Mr. Walczak, Plaintiffs have eliminated over $13,000 from their fee request. The composite chart of fees appended hereto as
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Exhibit 11 shows, with strike-throughs and notations, the adjustments that Plaintiffs have made.
76. In particular, Plaintiffs reduced the time spent by Mr. Grogan drafting the complaint because a portion of that time was spent developing the potential alternative of a class complaint.12
77. In addition, Plaintiffs have deducted the time spent (and expenses incurred) by Mr. Diver in three separate trips to Luzerne County with Mr. Grogan to interview Plaintiffs, prepare them for the preliminary injunction hearing and accompany them to the Register of Wills (and eventually to the court for a waiver of the waiting period) to obtain their marriage license.
78. Finally, Plaintiffs are not requesting reimbursement for the time and costs of Mr. Jadwat’s attendance at the preliminary injunction hearing, despite the importance of his role as consultant on immigration issues, because Plaintiffs are seeking compensation for the three lead lawyers, each of whom had an important role at the hearing. Grogan Dec. at ¶ 7.
79. The total fees and costs sought by Plaintiffs are reasonable and fully justified.13 12 In fact, Plaintiffs achieved the same results they would have achieved through a class action, but by way of settlement.
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CONCLUSION Plaintiffs are indisputably prevailing parties and are entitled to a fully compensatory attorneys’ fee award. Accordingly, the Plaintiffs respectfully request that the Court issue an award for fees of $ 124,579.00 and $1815.59 in costs.

Respectfully submitted,

Dated: March 27, 2008.

/s/ John J. Grogan JOHN J. GROGAN* PA ID No. 72443 EDWARD DIVER* PA ID No. 85011 Langer & Grogan, P.C. The Bell Atlantic Tower 1717 Arch Street Suite 4130 Philadelphia, Pa. 19103 215.320-5662 Tel. 215.320.5703 Fax. jgrogan@langergrogan.com

/s/ Mary Catherine Roper MARY CATHERINE ROPER PA ID No. 71107 American Civil Liberties Union Of Pennsylvania P.O. Box 40008 Philadelphia, PA 19106
13 The costs for which Plaintiffs seek reimbursement are detailed in Mr. Grogan’s declaration and attachments.

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Tel.: (215) 592-1513 ext. 116 Fax: (215) 592-1343 mroper@aclupa.org
WITOLD J. WALCZAK PA ID No. 62976 American Civil Liberties Union Of Pennsylvania 313 Atwood Street Pittsburgh, PA 15213 Tel.: (412) 681-7864 Fax: (412) 681-8707 vwalczak@aclupgh.org
OMAR C. JADWAT* American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org LUCAS GUTTENTAG* JENNIFER C. CHANG* American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org lguttentag@aclu.org
SETH F. KREIMER* Pa. I.D. No. 26102 3400 Chestnut St. Philadelphia, Pa. 19104 215-898-7447 215-573-2025 Fax skreimer@law.upenn.edu
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*Admitted pro hac vice
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CERTIFICATE OF SERVICE I, Mary Catherine Roper, hereby certify that on this 27th day of March 2008, I delivered a copy of the foregoing to counsel for defendant by email, as well as through electronic filing.
/s/ Mary Catherine Roper Mary Catherine Roper
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 Case: 3:07-cv-717 As of: 07/16/2012 01:56 PM EDT 1 of 6
CLOSED,EMERG,SCR,SETOFFNS
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:07−cv−00717−ARC

Buck et al v. Stankovic Assigned to: Honorable A. Richard Caputo Cause: 42:1983 Civil Rights Act Plaintiff Heather Buck
Plaintiff

Date Filed: 04/17/2007 Date Terminated: 02/11/2008 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Edward A. Diver Langer Grogan &Diver P.C. 1717 Arch Street, Suite 4130 Philadelphia, PA 19103 (215) 320−5660 Email: ndiver@langergrogan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Newell American Civil Liberties Union Foundation 39 Drumm St. San Francisco, Ca 94111 415−343−0774 Email: jchang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John J. Grogan Langer Grogan &Diver P.C. Bell Atlantic Tower 1717 Arch Street Suite 4130 Philadelphia, PA 19103 215.320.5662 Email: jgrogan@langergrogan.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mary Catherine Roper American Civil Liberties Union of Pennsylvania P.O. Box 1161 Philadelphia, PA 18105 215−592−1513 ext 116 Email: mroper@aclupa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat American Civil Liberities Union Foundation 125 Broad St., 18th Fl. New York, NY 10004 212−549−2620 Email: ojadwat@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:07-cv-717 As of: 07/16/2012 01:56 PM EDT 2 of 6

Jose Guadelupe Arias−Maravilla

represented by Edward A. Diver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jennifer C. Newell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John J. Grogan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mary Catherine Roper (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Dorothy Stankovic In her individual and official capacities

represented by Conrad A. Falvello The Falvello Law Firm 782 West Butler Drive Sugarloaf, PA 18249 570−788−4191 Email: falvello@ptd.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael J. Hudacek 43 East Main St. Plymouth, PA 18651 717−779−9591 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Harry G. Mahoney Deasey, Mahone Valentini &North LTD 1601 Market Street Suite 3400 Philadelphia, PA 19103−2301 (215) 587−9400 Email: hgmahoney@dmvlawfirm.com ATTORNEY TO BE NOTICED

Date Filed 04/17/2007
04/17/2007

# Docket Text
1 COMPLAINT against Dorothy Stankovic ( Filing fee $350, Receipt Number 1011785), filed by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Civil Cover Sheet # 2 Exhibit(s))(ch, ) (Entered: 04/18/2007)
2 AFFIDAVIT filed by Heather Buck, Jose Guadelupe Arias−Maravilla. (ch, ) (Entered: 04/18/2007)

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04/18/2007 04/18/2007 04/18/2007 04/18/2007
04/18/2007
04/18/2007
04/19/2007
04/19/2007 04/19/2007 04/19/2007 04/21/2007
04/23/2007 04/24/2007 04/25/2007
04/25/2007 04/26/2007 04/27/2007 04/27/2007

Summons Issued as to Dorothy Stankovic and provided to Attorney Mary Catherine Roper for service on Defendant(s). (ch, ) (Entered: 04/18/2007)
3 MOTION for Temporary Restraining Order and/or Preliminary Injunction by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Proposed Order # 2 Affidavit # 3 Affidavit # 4 Affidavit)(Roper, Mary) (Entered: 04/18/2007)
4 BRIEF IN SUPPORT re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Heather Buck, Jose Guadelupe Arias−Maravilla.(Roper, Mary) (Entered: 04/18/2007)
5 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Mary Catherine Roper on behalf of Heather Buck, Jose Guadelupe Arias−Maravilla Attorney John Grogan is seeking special admission. Filing fee $ 25, receipt number 1012810.. (Roper, Mary) (Entered: 04/18/2007)
6 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Mary Catherine Roper on behalf of all plaintiffs Attorney Edward Diver is seeking special admission. Filing fee $ 25, receipt number 1012814.. (Roper, Mary) (Entered: 04/18/2007)
7 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Mary Catherine Roper on behalf of all plaintiffs Attorney Omar Jadwat is seeking special admission. Filing fee $ 25, receipt number 1012816.. (Roper, Mary) (Entered: 04/18/2007)
9 ORDER setting hearing on Plaintiff's Motion for a Temporary Restraining Order and/or Preliminary Injuction. TRO/Prel/Perm Injunction Hearing set for 4/26/2007 10:00 AM in Scranton before Honorable A. Richard Caputo. Signed by Judge A. Richard Caputo on 4/19/07. (hm, ) (Entered: 04/19/2007)
10 SPECIAL ADMISSIONS FORM APPROVED as to John J. Grogan signed by Judge A. Richard Caputo on 4/19/07. (hm, ) (Entered: 04/19/2007)
11 SPECIAL ADMISSIONS FORM APPROVED as to Edward Diver signed by Judge A. Richard Caputo on 4/19/07. (hm, ) (Entered: 04/19/2007)
12 SPECIAL ADMISSIONS FORM APPROVED as to Omar C. Jadwat signed by Judge A. Richard Caputo on 4/19/07. (hm, ) (Entered: 04/19/2007)
13 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Mary Catherine Roper on behalf of all plaintiffs Attorney Jennifer Chang is seeking special admission. Filing fee $ 25, receipt number 1014633.. (Roper, Mary) (Entered: 04/21/2007)
14 NOTICE of Appearance by Harry G. Mahoney on behalf of all defendants (Mahoney, Harry) (Entered: 04/23/2007)
15 SPECIAL ADMISSIONS FORM APPROVED as to Jennifer C. Changsigned by Judge A. Richard Caputo on 4/24/07. (hm, ) (Entered: 04/24/2007)
16 ANSWER TO STATEMENT OF FACTS re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction Response to Motion for Temporary Restraining Order filed by Dorothy Stankovic.(Mahoney, Harry) (Entered: 04/25/2007)
17 BRIEF IN SUPPORT Brief Contra Plaintiffs' Motion for Temporary Restraining Order re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Dorothy Stankovic.(Mahoney, Harry) (Entered: 04/25/2007)
26 List of Exhibits admitted at the Temporary Restraining Order/Injunction hearing held 4/26/07. Exhibits located in Chambers. (hm, ) (Entered: 05/09/2007)
19 TRANSCRIPT of Excerpt of Proceedings from TRO Hearing held on 4/26/2007. (cr1, ) (Entered: 04/27/2007)
20 BRIEF IN SUPPORT re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Exhibit(s) Transcript# 2 Supplement DOT Publication)(Roper, Mary) (Entered: 04/27/2007)

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04/27/2007 04/30/2007 04/30/2007 05/01/2007
05/08/2007 05/11/2007 05/15/2007 05/25/2007 08/01/2007 08/20/2007 08/21/2007 08/22/2007
08/24/2007 09/28/2007 10/03/2007 10/04/2007

21 BRIEF IN SUPPORT With Tables re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction filed by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Exhibit(s) Transcript# 2 Exhibit(s) DOT Publication# 3 Exhibit(s) Unpublished case)(Roper, Mary) (Entered: 04/27/2007)
22 TRANSCRIPT of Proceedings of TRO Hearing held on Thursday, April 26, 2007. (cr1, ) (Entered: 04/30/2007)
23 BRIEF IN OPPOSITION re 3 MOTION for Temporary Restraining Order and/or Preliminary Injunction Defendant's Post Hearing Brief Contra Plaintiffs' Motion for TRO filed by Dorothy Stankovic.(Mahoney, Harry) (Entered: 04/30/2007)
24 MEMORANDUM AND ORDER granting 3 Plaintiffs' Motion for TRO and/or Preliminary Injunction. Defendant Dorothy Stankovic, Register of Wills for Luzerne County, her agents and employees, are ENJOINED and RESTRAINED from requiring that Plaintiff Jose Guadelupe Arias−Maravilla produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license. The requirement that a security bond be posted is hereby WAIVED. Signed by Judge A. Richard Caputo on 5/1/07 (hm, ) (Entered: 05/01/2007)
25 Letter from Harry G. Mahoney, Esquire to Judge Caputo noticing compliance with Court Order of May 1, 2007. (Mahoney, Harry) (Entered: 05/08/2007)
27 STIPULATION re 1 Complaint Stipulation to Extend Time to Answer Complaint by Dorothy Stankovic. (Mahoney, Harry) (Entered: 05/11/2007)
28 ORDER Approving 27 Stipulation to Extend Time to Answer Complaint. Dorothy Stankovic answer due 5/26/2007. Signed by Judge A. Richard Caputo on 5/15/07. (hm, ) (Entered: 05/15/2007)
29 Answer to Plaintiffs' Complaint with Affirmative Defenses ANSWER to Complaint with Jury Demand by Dorothy Stankovic.(Mahoney, Harry) (Entered: 05/25/2007)
30 ORDER Scheduling Case Management Conference for 10/4/2007 11:00 AM in Chambers, Scranton before Honorable A. Richard Caputo. Signed by Judge A. Richard Caputo on 8/1/07. (hm, ) (Entered: 08/01/2007)
31 Letter to Court dated 8/10/07 from Mary Catherine Roper, Esquire, requesting this matter be referred to a Magistrate Judge for the purposes of mediation. (hm, ) (Entered: 08/21/2007)
32 ORDER REFERRING CASE for Settlement Conference/Mediation to Judge Thomas M. Blewitt. Signed by Judge A. Richard Caputo on 8/21/07. (hm, ) (Entered: 08/21/2007)
33 ORDER; IT IS ORDERED THAT: 1. A settlement confr shall be conducted on Sept 27, 2007 at l0 AM in chambers. 2. All persons having settlement authority shall be either present or available telephonically on the date and time of the confr. The attention of the parties and counsel is directed to the District Court's order of Aug 21, 2007. (Doc 32). 3. On or by Sept 24, 2007, the parties shall submit to the undersigned, via facsimile at 570−207−5749, a brief, concise and confidential settlement memorandum. Signed by Judge Thomas M. Blewitt on 8/22/07. (jb, ) (Entered: 08/22/2007)
34 RE−SCHEDULING ORDER: Case Management Conference set for 10/4/2007 11:00 AM in Scranton will now take place in the US Courthouse, Suite 235, Wilkes−Barre before Honorable A. Richard Caputo.Signed by Judge A. Richard Caputo on 8/23/2007. (bg, ) (Entered: 08/24/2007)
36 CASE MANAGEMENT PLAN of all parties by Heather Buck, Jose Guadelupe Arias−Maravilla. (Roper, Mary) (Entered: 09/28/2007)
37 MOTION to Continue Rule 16 Scheduling Conference by Dorothy Stankovic. (Attachments: # 1 Proposed Order)(Mahoney, Harry) (Entered: 10/03/2007)
38 ORDER granting 37 Defendant's Motion to Continue the Rule 16 Scheduling Conference. The conference is hereby continued generally until rescheduled by the Court, if necessary, in order to permit the parties to conclude their settlement.

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01/09/2008 01/09/2008 01/18/2008 01/28/2008 02/11/2008 03/27/2008 03/27/2008 03/27/2008
04/08/2008 04/09/2008 04/10/2008 05/01/2008 05/13/2008 05/16/2008
05/23/2008

Signed by Judge A. Richard Caputo on 10/4/07. (hm, ) (Entered: 10/04/2007)
39 NOTICE by Heather Buck, Jose Guadelupe Arias−Maravilla OF FIRM NAME CHANGE (Grogan, John) (Entered: 01/09/2008)
Copy of Notice (Doc. 39) forwrded to Corey to be updated in the Attorney Database (bg, ) (Entered: 01/09/2008)
40 ORDER for parties to file a status report re: settlement within ten (10) days of the date of this Order. Signed by Honorable A. Richard Caputo on 1/18/08. (hm, ) (Entered: 01/18/2008)
41 STATUS REPORT by Heather Buck, Jose Guadelupe Arias−Maravilla, Dorothy Stankovic. (Attachments: # 1 Consent Order)(Mahoney, Harry) (Entered: 01/28/2008)
42 CONSENT ORDER resolving remaining issues in this case. Signed by Honorable A. Richard Caputo on 2/11/08. (hm, ) (Entered: 02/11/2008)
43 Letter to Attorney Grogan from Court re: removal or destruction of exhibits submitted at the injunction hearing held 4/26/08 w/permission for destruction form attached. (hm, ) (Entered: 03/27/2008)
44 Letter to Attorney Mahoney from Court re: removal or destruction of exhibits submitted at the injunction hearing held 4/26/08 w/permission for destruction form attached. (hm, ) (Entered: 03/27/2008)
45 MOTION for Attorney Fees and Costs Pursuant to 42 U.S.C. 1988 by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Exhibit(s) #1 Transcript, # 2 Exhibit(s) #2 Dec. Witold Walczak, # 3 Exhibit(s) #3 Dec. John Grogan, # 4 Exhibit(s) #4 Dec. Edward Diver, # 5 Exhibit(s) #5 Dec. Mary Catherine Roper, # 6 Exhibit(s) #6 Dec. Omar Jadwat, # 7 Exhibit(s) #7 Dec. Jennifer Chang, # 8 Exhibit(s) #8 Dec. Seth Kreimer, # 9 Exhibit(s) #9 Dec. Edward Posner, # 10 Exhibit(s) #10 Dec. Francis Patrick Newell, # 11 Exhibit(s) #11 Composite Chart of Fees)(Roper, Mary) (Additional attachment(s) added on 3/28/2008: # 12 Unpublished Cases − Binder 1, # 13 Unpublished Cases − Binder 2) (rm, ). (Entered: 03/27/2008)
46 STIPULATION re 45 MOTION for Attorney Fees and Costs Pursuant to 42 U.S.C. 1988 by Heather Buck, Jose Guadelupe Arias−Maravilla, Dorothy Stankovic. (Mahoney, Harry) (Entered: 04/08/2008)
REPORT OF SETTLEMENT OFFICER − Settlement Not Reached on 9/27/07. (This report should have been docketed by minute sheet of 9/27/07 docketed by clerks office) (jb, ) (Entered: 04/09/2008)
47 STIPULATION AND ORDER − Of Extension of time to repsond to Plaintiff's Petition for Attorneys Fees and Costs is GRANTED until May 1, 2008.Signed by Honorable A. Richard Caputo on 4/10/08. (ga, ) (Entered: 04/10/2008)
48 RESPONSE by Dorothy Stankovic to 45 MOTION for Attorney Fees and Costs Pursuant to 42 U.S.C. 1988. (Attachments: # 1 Exhibit(s) Exhibit A to Response to Fee Petition, # 2 Exhibit(s) Exhibit B to Response to Fee Petition)(Mahoney, Harry) (Entered: 05/01/2008)
49 STIPULATION re 45 MOTION for Attorney Fees and Costs Pursuant to 42 U.S.C. 1988 by Heather Buck, Jose Guadelupe Arias−Maravilla. (Roper, Mary) (Entered: 05/13/2008)
50 ORDER re 45 Stipulation to Extend Time for Plaintiff's Reply in Support of Petition for Attorney's Fees and Costs. The Plaintiff is granted an extension of one week, May 23,2008, to file a reply in support of their Petition for Attorney's Fees and Costs.Reply Brief due by 5/23/2008.Signed by Honorable A. Richard Caputo on 5/16/08. (erp, ) (Entered: 05/16/2008)
51 REPLY BRIEF re 45 MOTION for Attorney Fees and Costs Pursuant to 42 U.S.C. 1988 filed by Heather Buck, Jose Guadelupe Arias−Maravilla. (Attachments: # 1 Exhibit(s) Declaration of Thomas B. Schmidt, III, # 2 Exhibit(s) Supplemental Decl. of Mary Catherine Roper, # 3 Exhibit(s) Transcript of Proceedings)(Roper,

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08/27/2008 10/23/2008

Mary) (Entered: 05/23/2008)
52 MEMORANDUM AND ORDER granting 45 Motion for Attorney Fees. IT IS HEREBY ORDERED that Plaintiffs' Petition for attorneys' fees and costs is GRANTED as follows: (1) Plaintiffs are awarded counsel fees as follows: (a) for Mary Catherine Roper, of the ACLU of Pennsylvania: nineteen thousand, two hundred thirty−eight dollars and sixty cents ($19,238.60). (b) For John Grogan of Langer, Grogan and Diver, P.C.: thirty three thousand, four hundred eighty−six dollars and thirty cents ($33,486.30). (c) For Edward Diver of Langer, Grogan, and Diver, P.C.: twenty−nine thousand, eight hundred twenty−two dollars ($29,822). (d) For Omar Jadwat of the ACLU Foundation Immigrants' Rights Project based in New York: one thousand, five hundred forty−eight dollars ($1,548). (e) For Jennifer Chang of the ACLU Foundation Immigrants' Rights Project based in San Francisco: seven hundred and four dollars ($704.). (f) For Seth Kreimer, of the University of Pennsylvania Law School: one thousand, two hundred dollars ($1,200). (2) Plaintiffs are awarded costs in the amount of one thousand, eight hundred fifteen dollars and fifty−nine center ($1,815.59). Signed by Honorable A. Richard Caputo on 8/27/08 (jam, ) (Entered: 08/27/2008)
53 Praecipe to Satisfy Award of Attorneys Fees and Costs filed by Defense Counsel on behalf of Plaintiffs Counsel Mary Catherine Roper, Esquire. (Mahoney, Harry) (Entered: 10/23/2008)