Attorneys for the city have asked a federal judge to reject the Boy Scouts’ latest request for more than $1 million in legal fees related to the dispute over their occupancy of a city-owned building.
The Scouts want a total of $1,038,664.07 from the city for winning one of their claims in a federal civil-rights lawsuit to avoid eviction.
Federal law allows the prevailing party in a civil-rights lawsuit to bill the other party for legal fees.
But a Feb. 10 motion filed by the city suggests that the Scouts’ successful claim will ultimately prove to be meritless. Thus, the Scouts wouldn’t be entitled to any legal fees from the city.
And if the claim isn’t tossed out on appeal, the Scouts would only be entitled to $302,327 from the city, according to the city’s motion.
Between July 2010 and February 2012, the Scouts claim they incurred $75,089 in legal fees — mostly while trying to reach a settlement with the city.
However, the city’s Feb. 10 motion disputes that figure as well. According to the motion, the Scouts only incurred $33,744 in legal fees during that time period, if anything.
In the beginning
Since 2008, the city has been trying to evict the BSA Cradle of Liberty Council from 231-251 N. 22nd St., because the council won’t accept gays nor pay any rent.
In response to the eviction notice, the Scouts sued the city in federal court.
In 2010, a jury ruled that the city acted unconstitutionally when conditioning the Scouts’ rent-free occupancy of the property on compliance with antibias rules.
The Scouts’ request for legal fees is based on winning that unconstitutional-condition claim.
The jury rejected two other Scouts’ claims against the city: viewpoint discrimination and equal-protection violations.
The city disputes the amount of work done by the Scouts’ attorneys to bring about the winning claim. The city also contends the Scouts are trying to bill the city for legal work done on claims the Scouts lost.
“Taxpayers are required to reimburse prevailing parties only for those fees and expenses actually needed to achieve the favorable result,” the city’s Feb. 10 motion states. “The [civil-rights] laws weren’t intended to provide a windfall for lawyers at the taxpayers’ expense.”
But the Scouts say there’s overlap between the legal work done on the successful and unsuccessful claims. Thus, they’re entitled to bill the city for some work done on the unsuccessful claims if that work also contributed to the successful claim.
The city’s Feb. 10 motion also faults the Scouts for allegedly trying to bill for too many attorneys doing the same work.
“[The Scouts] seek fees for time spent on duplicated tasks and vague or non-existent time entries that render it impossible to determine if the time spent on the task is reasonable,” the motion states.
Some of the Scouts’ fee entries have been redacted in exhibits submitted to the court, the city’s motion notes.
“[The city] cannot determine the propriety of the billable time if there is no suggestion whatsoever as to what services the attorneys performed during that time [due to the redactions],” the city’s motion states.
Kera Armstrong, a spokesperson for the Scouts, had no comment on the redaction issue, nor any other aspect of the litigation.
If the Scouts are awarded any legal fees, the money presumably would go to their pro-bono attorneys at the law firm of Drinker Biddle & Reath LLP.
In an earlier motion, the city asked U.S. District Judge Ronald L. Buckwalter to defer ruling on the Scouts’ request for legal fees until the appellate process is completed — because the Scouts’ successful claim might be thrown out on appeal.
But in Jan. 31 ruling, Buckwalter said he didn’t want to postpone the fee-determination process.
“The court sees no principled reason in this case to withhold a determination of the fees and costs, especially here where the court indulged the parties’ request to withhold a decision on essentially all pending motions for well over a year upon representation that the case could be reasonably resolved by agreement of the parties,” Buckwalter stated.
Judicial request
In a related matter, Buckwalter recently asked both sides to file supplemental briefs on the city’s post-trial motion for dismissal of the unconstitutional-conditional claim — or alternatively, for a new trial.
That post-trial motion has been held in abeyance for about 20 months, as both sides pursued a private settlement.
The city’s basic position is that a 2010 Supreme Court decision reaffirms the right of governments to condition subsidies on compliance with antibias rules.
However, the Scouts say that Supreme Court decision doesn’t apply, partly because the Scouts built and maintained the building in question with their own funds, and have occupied it for more than 80 years.
The city’s supplemental brief was expected to be filed by Feb. 28. Then, the Scouts will have an opportunity to reply to that brief.
There is no deadline for Buckwalter to issue a ruling on the post-trial motions, nor the fee determination.
Settlement silence
In June 2010, immediately after the jury verdict, Buckwalter encouraged both sides to settle the case out of court.
Before jurors were dismissed, Buckwalter posed: “Why can’t these reasonable, honorable institutions get together now and reach some kind of amicable agreement as to how this issue should be ultimately disposed? Do you agree with me?”
There was no audible response from the jurors.
The only publicly known settlement attempt centered around a deal for the Scouts to purchase the property for $500,000 — far less than the appraised value.
But critics said the deal would set a bad precedent by selling city property at a reduced rate to an organization that discriminates. And Philadelphia City Council declined to approve the plan.
Gay businessman Mel Heifetz offered up to $2 million to purchase the building and donate it to a nonprofit that doesn’t discriminate.
This week, Heifetz’s attorney, William H. Ewing, expressed confidence that the city ultimately won’t be responsible for any of the Scouts’ legal fees.
“I think the jury verdict will be thrown out because of the 2010 Supreme Court decision,” Ewing said. “Therefore, the Scouts won’t be entitled to any fees as a result of what’s happened so far. If the city decides to dispose of this property because it’s surplus — which they’ve admitted by saying they’re willing to sell it to the Scouts — they ought to sell it. Let the Boy Scouts bid on it like everyone else. And let the court case run its course.”
Tim Cwiek can be reached at [email protected].