Section 1988 Fees After Ballot-Counting Relief: Prevailing-Party Status, Local Rates, and Lodestar Proof

1. Introduction

This decision concerns the financial consequences of successful civil-rights litigation after the underlying merits judgment has been vacated as moot. Five Pennsylvania voters—Linda Migliori, Francis J. Fox, Richard E. Richards, Kenneth Ringer, and Sergio Rivas—obtained an order requiring the counting of undated mail-in ballots in a 2021 judicial election. Their ensuing request for attorneys’ fees raised two distinct questions: whether they qualified as prevailing parties under 42 U.S.C. § 1988, and how much compensation their lawyers could reasonably recover.

The Lehigh County Board of Elections challenged their entitlement to fees. The voters challenged reductions in compensable hours and hourly rates, together with the denial of fees incurred litigating the fee request itself. The majority affirmed the District Court’s determinations on both sides of the dispute.

The opinion’s practical significance lies in its application of established fee principles: sufficiently specific objections permit judicial scrutiny of billing; trial judges retain substantial discretion when assessing excessive hours; the relevant legal market may be narrower than an entire federal judicial district; and fees for fee litigation require their own supporting lodestar submission.

Judge Matey’s dissent addressed broader questions about private enforcement of federal voting protections, the role of public-interest litigation, and the relationship between litigation success and reasonable compensation. Those views must be distinguished from the majority’s narrower resolution.

2. Background and Procedural History

The ballot dispute

Pennsylvania law requires voters using mail-in ballots to sign and date their ballot-envelope declarations. The plaintiffs omitted the dates on their envelopes in the 2021 election. They sued under 42 U.S.C. § 1983, alleging that excluding their ballots violated the Materiality Provision, 52 U.S.C. § 10101(a)(2)(B).

That provision generally prohibits a person acting under color of law from denying an individual the right to vote because of an error or omission on election-related paperwork when the error or omission is immaterial to determining the individual’s qualifications to vote. The original dispute therefore implicated both the availability of private enforcement and the distinction between voter qualifications and ballot-casting requirements.

Candidates Zachary Cohen and David Ritter participated as intervenors in the original litigation. Ritter supported exclusion of the undated ballots. According to the dissent’s account, counting those ballots changed the election’s outcome against him.

The original appeal and subsequent vacatur

In Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022), the Third Circuit allowed enforcement through § 1983 and directed the District Court to order the undated ballots counted. The parties opposing the voters had not challenged whether the Materiality Provision conferred an individual federal right, and the panel found their materiality arguments insufficient.

Ritter sought Supreme Court intervention. A temporary stay was issued and later vacated. After the ballots were counted and the election certified, the Supreme Court vacated the panel judgment as moot and directed dismissal in Ritter v. Migliori, 143 S. Ct. 297 (Mem.) (2022).

That vacatur was not a Supreme Court merits ruling that the original panel’s statutory interpretation was wrong. It removed the judgment because the controversy had become moot. A later Third Circuit decision nevertheless adopted a different interpretation of the Materiality Provision’s application to Pennsylvania’s dating requirement.

The fee proceedings

The District Court determined that the voters were prevailing parties and that no special circumstances made a fee award unjust. It nevertheless reduced requested hours and certain hourly rates. It also denied compensation for litigating the fee petition because the voters supplied no supporting documentation for the necessary separate lodestar analysis.

The resulting appeal and cross-appeal thus concerned fee entitlement and calculation—not a fresh adjudication of the original ballot-counting claim.

3. Summary of the Majority Opinion

Judge McKee, writing for the majority, affirmed all challenged fee determinations.

The majority deliberately limited its discussion. It explained that the nonprecedential opinion addressed the fee dispute for parties already familiar with the litigation and declined to answer the dissent point by point.

4. Analysis of the Majority’s Reasoning and Authorities

A. Fee entitlement and fee amount are separate questions

The decision distinguishes eligibility for an award from the reasonableness of the amount requested. Prevailing-party status establishes potential entitlement under § 1988; it does not make every claimed hour or proposed billing rate compensable.

In Truesdell v. Phila. Hous. Auth., 290 F.3d 159, 163 (3d Cir. 2002), the court identified plenary review as the standard governing legal questions about the proper framework for fee applications. The majority relied on that authority when reviewing whether the voters were prevailing parties. Plenary review means that the appellate court independently evaluates the legal issue rather than deferring to the trial court’s legal conclusion.

For the substance of entitlement, the majority adopted the reasoning in Migliori v. Lehigh Cnty. Bd. of Elections, 668 F. Supp. 3d 337, 345–49 (E.D. Pa. 2023). That adoption encompassed both prevailing-party status and the absence of special circumstances making an award unjust.

The supplied appellate opinion does not reproduce that District Court analysis. Its holding should therefore be stated narrowly: these voters remained eligible for fees in this procedural setting despite the subsequent mootness vacatur. The opinion does not announce a universal rule that any favorable judgment later vacated will support fees.

B. Specific objections provide the necessary procedural notice

The controlling authority was Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir. 1989), cited in the opinion’s footnote as Bell v. United Princeton Props., Inc.. Under that decision, a fee opponent must identify the challenged portion of the request and explain its objection sufficiently to notify the applicant what must be defended.

This requirement serves a fairness function. An applicant should not lose compensation on a billing issue that was never placed in dispute. But specificity does not require the opponent to prescribe the exact judicial reduction. Identifying the type of work and explaining why its claimed hours are unreasonable can suffice.

The Board met that standard because its objections listed the hours and activities it considered excessive and stated the grounds for its challenge. The majority accordingly rejected the voters’ contention that the objections were too general.

C. Judicial judgment is permissible within the scope of an actual objection

The voters next argued that the District Court reduced fees for reasons the Board had not actually raised. The majority again relied on Bell v. United Princeton Properties, Inc., which recognizes both a limitation and a substantial measure of discretion: reductions must rest on objections actually made, but selecting the appropriate reduction necessarily involves judicial judgment.

The distinction is between introducing a new objection and evaluating an existing objection. Once excessive time on a particular category of work is properly challenged, the judge may consider the task’s demands, staffing, and attorney experience when deciding how much time was reasonable.

The District Court did exactly that. It explained why the hours associated with particular tasks were excessive in light of the work itself, the number of attorneys involved, and their experience. The majority treated these explanations as factual support for a permissible exercise of discretion, not as unauthorized new objections.

Rode v. Dellarciprete, 892 F.2d 1177, 1182 (3d Cir. 1990), supplied the abuse-of-discretion standard for reviewing the reasonableness of the overall award. That standard recognizes the trial judge’s superior familiarity with the litigation while preserving appellate correction of legal or unsupported factual errors.

D. A federal judicial district need not constitute a single fee market

The voters proposed the Eastern District of Pennsylvania as the relevant market for hourly rates. The District Court instead selected Allentown, where the action was filed and litigated. It explained that the district’s Allentown, Reading, Easton, and Philadelphia vicinages contain different legal markets with different rates.

Under Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 426 F.3d 694, 709 (3d Cir. 2005), as amended, the determination of an appropriate billing rate is a factual finding reviewed for clear error. Applying that deferential standard, the majority found no clear error in the selection of Allentown.

The significance is practical rather than categorical. A federal district’s geographic boundaries do not necessarily establish a uniform attorney market. However, this opinion does not hold that the city where a case is filed invariably determines the compensable rate. It approves the market determination made on this record.

The majority also approved reliance on the CLS fee schedule because both sides had relied on it in affidavits. Its use was therefore supported by the parties’ evidentiary submissions. The decision does not make that schedule universally binding or eliminate the need for evidence supporting requested rates.

E. Appellate work may be compensable, but fee-petition work needs its own proof

The majority adopted the recommendation to award fees for work on the merits appeal, citing Migliori v. Lehigh Cnty. Bd. of Elections, 2025 WL 2493838, at *1 (E.D. Pa. July 31, 2025). It did so for the same reasons supporting its other determinations.

By contrast, the request for compensation for litigating the fee petition failed. Relying on Rode v. Dellarciprete, 892 F.2d at 1192, the majority explained that such compensation requires a separate lodestar analysis.

The voters supplied no supporting documentation despite notice that their supplemental submission would complete briefing. The defect was therefore evidentiary and procedural—not a categorical prohibition against recovering “fees on fees.” A potentially compensable category of work still requires substantiation.

5. The Dissent: Broader Questions and the Precedents Supporting Them

Judge Matey agreed that the voters satisfied existing prevailing-party standards. His disagreement concerned whether they possessed an enforceable statutory right, whether special circumstances should nevertheless bar recovery, and whether their limited success required a further reduction.

A. Private enforcement: an individual right must precede a § 1983 remedy

The dissent distinguished two questions often conflated in statutory litigation: whether Congress expressly created a private action within a particular statute, and whether § 1983 supplies a remedy for an individual federal right created by that statute.

• Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), supplied the central requirement of an unambiguously conferred individual right. The dissent read it as requiring rights-creating, individually focused statutory language rather than a provision that merely benefits people or regulates governmental conduct.

• Blessing v. Freestone, 520 U.S. 329 (1997), represented the older multifactor approach reflected in circuit precedent. Judge Matey argued that continued reliance on that framework was inconsistent with subsequent Supreme Court clarification.

• Medina v. Planned Parenthood S. Atl., 606 U.S. 357 (2025), was particularly important to the dissent because it instructed lower courts not to rely on Blessing v. Freestone when determining whether a statute creates an enforceable individual right. Judge Matey viewed that instruction as requiring reconsideration of the Materiality Provision.

• Health & Hosp. Corp. of Marion Cnty. v. Talevski, 599 U.S. 166 (2023), reinforced the requirement that the provision be phrased in terms of the persons benefited and contain individual-centered, rights-creating language. The dissent also invoked Justice Alito’s separate dissent there as recognizing the displacement of the older approach.

Applying those authorities, Judge Matey emphasized that the Materiality Provision addresses a “person acting under color of law.” He regarded it as imposing a public obligation rather than creating an individual entitlement. He also contrasted the provision’s Attorney General enforcement mechanism with express private enforcement language elsewhere in federal election law.

This conclusion was contested even within the authorities he cited. Schwier v. Cox, 340 F.3d 1284, 1296–97 (11th Cir. 2003), and Vote.Org v. Callanen, 89 F.4th 459, 474–75 (5th Cir. 2023), reached the opposite conclusion about private enforceability. The dissent discounted their reasoning because the former relied partly on the older framework and the latter partly on the former.

The dissent also drew an analogy to litigation over § 2 of the Voting Rights Act. Brnovich v. Democratic Nat'l Comm., 594 U.S. 647, 690 (2021), was cited through Justice Gorsuch’s concurrence questioning a private cause of action. Turtle Mountain Band of Chippewa Indians v. Howe, 137 F.4th 710, 719 (8th Cir. 2025), supported the dissent’s textual approach, but the opinion expressly records that the decision was later vacated. Neither the concurrence nor the vacated decision should be mistaken for a binding resolution of the Materiality Provision question here.

B. Public rights, private rights, and the franchise

Three Rivers Ctr. for Indep. Living v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 419 (3d Cir. 2004), supplied the dissent’s distinction between individual entitlements and aggregate governmental duties. Judge Matey characterized the Materiality Provision as the latter.

He also invoked Justice Thomas’s separate opinions in TransUnion LLC v. Ramirez, 594 U.S. 413, 448 n.2 (2021), and Spokeo, Inc. v. Robins, 578 U.S. 330, 345 (2016), for historical descriptions of public rights as duties owed to the community collectively. Separately, he cited the majority opinion in TransUnion LLC v. Ramirez for the distinction between private plaintiffs and publicly accountable enforcement officials.

The dissent then advanced a broader philosophical argument that the franchise is fundamentally collective and historically conditioned on civic virtue. Its judicial references included:

• Wesberry v. Sanders, 376 U.S. 1 (1964), and Reynolds v. Sims, 377 U.S. 533 (1964), recognizing the profound importance and constitutional protection of voting by qualified citizens.
• San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 36 n.78 (1973), and Bush v. Gore, 531 U.S. 98, 104 (2000), cited for statements concerning the absence of a freestanding constitutional voting entitlement in particular contexts.
• Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886), quoted for historical language describing the franchise as a socially conferred privilege subject to conditions.

These citations require contextual care. Statements about whether the Constitution initially requires a particular election are distinct from constitutional protections governing an election once established. Likewise, historical restrictions do not themselves authorize contemporary virtue-based voting qualifications. The majority adopted no conclusion that individual voting rights are absent or that civic virtue supplies a modern eligibility test.

The dissent’s references to Cicero, Aquinas, Bellarmine, Roman law, Blackstone, Cooley, and modern scholarship supported its historical and philosophical account. They were not judicial precedents. Its reference to the SAVE America Act likewise described legislative activity, not an enacted rule governing this fee appeal.

C. The later distinction between voter qualifications and ballot validity

The dissent’s strongest subsequent circuit authority was Pa. State Conf. of NAACP Branches v. Sec'y Commw. of Pa., 97 F.4th 120 (3d Cir. 2024). That decision held that Pennsylvania’s mail-in ballot dating requirement was not covered by, and therefore did not violate, the Materiality Provision.

The distinction was between determining who is qualified to vote and regulating how a qualified voter casts a valid ballot. Judge Matey regarded the later decision as resolving a question inadequately presented in the original litigation.

The dissent traced this reasoning to Justice Alito’s dissent from the denial of a stay in Ritter v. Migliori, 142 S. Ct. 1824 (2022). Justice Alito reasoned that rejecting a ballot for noncompliance with casting rules does not necessarily deny the voter’s underlying right to vote. That separate opinion was not itself a Supreme Court holding, although the later circuit decision drew on it.

The successive Ritter v. Migliori orders thus played different roles: the temporary stay paused the relief; its vacation allowed the litigation’s practical consequences to proceed; the later mootness order vacated the panel judgment; and Justice Alito’s separate writing supplied reasoning subsequently influential in another case.

D. Special circumstances and the “private attorney general” rationale

Judge Matey’s second major argument was that organizationally supported impact litigation should, in these circumstances, fall outside § 1988’s usual fee presumption. He characterized the litigation as directed toward changing election law for outside political interests rather than enforcing existing rights for the named voters.

The historical authorities underlying this argument were:

• Associated Indus. of N.Y. State v. Ickes, 134 F.2d 694, 704 (2d Cir. 1943), used the “private attorney general” concept to describe congressionally authorized litigation vindicating public interests. The dissent acknowledged that the decision was vacated for mootness; its relevance was historical.

• Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968), established that a successful civil-rights injunction plaintiff should ordinarily recover fees unless special circumstances would make an award unjust. Judge Matey read its private-attorney-general rationale as supporting his proposed distinction between enforcement and law reform.

• Lee v. S. Home Sites Corp., 444 F.2d 143 (5th Cir. 1971), and Incarcerated Men of Allen Cnty. Jail v. Fair, 507 F.2d 281 (6th Cir. 1974), illustrated the development of equitable fee awards without express statutory authorization.

• Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975), rejected judicial creation of a general private-attorney-general exception to the American rule. The dissent situated Congress’s subsequent enactment of § 1988 within that allocation of fee-policy authority to the legislature.

Judge Matey also invoked historical champerty concerns. Wheeler v. Pounds, 24 Ala. 472 (1854), reflected traditional hostility toward outsider-supported litigation. Miller v. Calvin, Civil Action No. 82-C-2253, 1984 U.S. Dist. LEXIS 21057 (D. Colo. Dec. 20, 1984), supplied a class-action example involving concerns that named plaintiffs were merely manipulated figureheads.

These analogies did not establish an adjudicated finding of champerty or collusion in this case. The majority neither adopted the dissent’s characterization of the voters’ representation nor created an impact-litigation exception to § 1988.

Additional authorities illustrated possible limits on recovery:

• Farrar v. Hobby, 506 U.S. 103, 118 (1992), was cited through Justice O’Connor’s concurrence for the proposition that a reasonable fee can sometimes be no fee.
• Staten v. Hous. Auth. of Pittsburgh, 638 F.2d 599, 605 n.13 (3d Cir. 1980), and Ashley v. Atl. Richfield Co., 794 F.2d 128, 134 n.9 (3d Cir. 1986), supplied examples of circumstances potentially affecting fee entitlement, including events beyond a defendant’s control and nuisance settlements.
• In re Wawa, Inc. Data Sec. Litig., 85 F.4th 712 (3d Cir. 2023), provided a broader class-action analogy concerning the relationship between named plaintiffs, counsel, and litigation benefits—not a direct holding about voting-rights fee awards.

The critical distinction is between the established special-circumstances doctrine and the dissent’s proposed application of it. The majority upheld the finding that no such circumstances existed here.

E. Limited success and proportional compensation

The dissent’s final ground was more conventional: even an eligible prevailing party should receive only compensation reasonable in relation to the results obtained.

Hensley v. Eckerhart, 461 U.S. 424 (1983), establishes both the lodestar starting point and the importance of the plaintiff’s degree of success. Rode v. Dellarciprete, 892 F.2d at 1183, likewise permits a downward adjustment when the initial calculation is unreasonable in light of the outcome.

Judge Matey distinguished the immediate order requiring ballot counting from the broader declaratory relief the voters sought. Although the ballots were counted, the panel judgment was vacated, no lasting declaration invalidated the dating requirement, and the later circuit decision rejected their statutory interpretation.

He criticized the treatment of this issue in Migliori v. Lehigh Cnty. Bd. of Elections, 2025 WL 2493843, at *2 n.5 (E.D. Pa. May 19, 2025), the report and recommendation underlying the later proceedings.

Washington v. Phila. Cnty. Ct. of Common Pleas, 89 F.3d 1031 (3d Cir. 1996), and Cunningham v. City of McKeesport, 753 F.2d 262 (3d Cir. 1985), supported his argument that using improper considerations in a fee calculation constitutes legal error. In his view, the dispute therefore involved the governing legal standard, not merely discretionary arithmetic.

The competing perspectives concern how success should be measured: the voters obtained the concrete counting of disputed ballots, but not an enduring favorable rule. The majority affirmed the award without separately developing that tension.

6. Potential Impact

Practical guidance for fee applications

The decision reinforces the importance of task-specific billing, evidence supporting local rates, and a separately documented request for fee-petition work. Applicants should not assume that establishing prevailing-party status resolves the amount owed.

For opponents, the opinion illustrates the value of objections that identify particular categories, hours, activities, and reasons for excessiveness. Once adequate notice is supplied, the court may use its experience to determine the appropriate reduction within the disputed area.

Relief can have fee consequences despite later procedural developments

The award demonstrates that mootness vacatur does not necessarily erase fee eligibility. But the majority’s limited explanation and reliance on the District Court counsel against treating the result as a comprehensive rule governing every vacated judgment.

Local-market evidence remains important

Lawyers practicing within a geographically diverse federal district should anticipate disputes about whether metropolitan rates accurately reflect the market relevant to a particular case. The approved use of Allentown rates was record-specific, not an automatic district-wide formula.

The dissent identifies issues for future litigation, not new governing restrictions

Judge Matey’s opinion offers a framework for future challenges involving statutory rights, special circumstances, and limited success. Its proposed skepticism toward impact litigation, however, did not become the court’s rule. Organizational representation or an objective of broader legal change was not held to disqualify these voters from fees.

Finally, because the decision is nonprecedential, its main contribution is persuasive and practical. The binding force of the cited Supreme Court and precedential circuit decisions remains distinct from this panel’s application of them.

7. Complex Concepts Simplified

Prevailing party

A litigant who obtains qualifying judicial success against an opposing party. Eligibility for fees does not mean that every requested dollar is reasonable.

Section 1983

A vehicle for enforcing federal rights against persons acting under color of state law. It does not automatically make every federal statutory requirement privately enforceable.

Section 1988

A statute authorizing reasonable attorneys’ fees for prevailing parties in specified civil-rights actions, including § 1983 cases.

Lodestar

Reasonable hours multiplied by a reasonable hourly rate. It is the starting point for calculating fees, subject to appropriate adjustments.

Fees on fees

Compensation for work obtaining a fee award. Such work may be recoverable, but requires its own adequate supporting submission.

Mootness and vacatur

Mootness means the underlying dispute no longer presents a live controversy. Vacatur sets aside a judgment; when based on mootness, it does not itself decide which side’s merits arguments were correct.

Special circumstances

Exceptional considerations that may make a fee award unjust despite prevailing-party status. The majority found none here.

Standards of appellate review

Plenary review independently examines legal questions. Clear-error review defers to supported factual findings. Abuse-of-discretion review allows a range of reasonable trial-court judgments.

Champerty

A historically restricted form of outsider support for litigation in anticipation of sharing its proceeds. Its invocation by the dissent did not establish wrongdoing by the plaintiffs or their counsel.

Nonprecedential opinion

A decision resolving the parties’ dispute without establishing a binding rule for later Third Circuit panels.

8. Conclusion

The Third Circuit upheld the voters’ eligibility for § 1988 fees while affirming meaningful limits on recovery. Adequately specific objections supported reductions in excessive hours; local-market evidence supported Allentown rates; and missing documentation justified denying fees for the fee litigation itself.

The decision’s broader lesson is that successful civil-rights litigation and reasonable compensation are related but separate inquiries. The dissent raised substantial disputes about enforceability, impact litigation, and lasting success, but those arguments did not alter the judgment. As a nonprecedential affirmance, the opinion supplies practical guidance rather than a new binding rule.