The opinion
Filed: August 24, 1998
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-1697
(CA-92-202-BR)
James Arthur Pope, etc., et al,
Intervenors - Appellants,
versus
Governor James B. Hunt, etc., et al,
Defendants - Appellees.
O R D E R
The court amends its opinion filed August 19, 1998, as
follows:
On page 2, section 2, line 3 -- the judges are corrected to
read as follows: "W. Earl Britt, District Judge; James Dickson
Phillips, Jr., Senior Circuit Judge, sitting by designation;
Richard L. Voorhees, Chief District Judge, sitting by designation."
For the Court - By Direction
/s/ Patricia S. Connor
Clerk
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RUTH O. SHAW; MELVIN G. SHIMM;
ROBINSON O. EVERETT; JAMES M.
EVERETT; DOROTHY G. BULLOCK,
Plaintiffs,
JAMES ARTHUR POPE, a/k/a "Art";
BETTY S. JUSTICE; DORIS LAIL; JOYCE
LAWING; NAT SWANSON; RICK
WOODRUFF; J. RALPH HIXSON; AUDREY
MCBANE; SIM A. DELAPP, JR.; RICHARD
S. SAHLIE; HOWARD B. SMITH; H. M.
TYLER, a/k/a "Ted"; FERRELL L.
BLOUNT, III; H. HOWARD DANIELEY;
ANTHONY G. POSEY; RACHEL NANCY
RUMLEY,
Intervenors-Appellants,
No. 97-1697
v.
GOVERNOR JAMES B. HUNT, in his
official capacity as Governor of the
State of North Carolina; DENNIS A.
WICKER, in his official capacity as
Lieutenant Governor of the State of
North Carolina and President of the
Senate; HAROLD J. BRUBAKER, in his
official capacity as the Speaker of the
North Carolina House of
Representatives; ELAINE F. MARSHALL,
in her official capacity as Secretary of
the State of North Carolina; NORTH
CAROLINA STATE BOARD OF ELECTIONS;
EDWARD J. HIGH, in his official
capacity as Chairman of the North
Carolina State Board of Elections;
JEAN H. NELSON, in her official
capacity as a member of the North
Carolina State Board of Elections;
LARRY LEAKE, in his official capacity
as a member of the North Carolina
State Board of Elections; DOROTHY
PRESSER, in her official capacity as a
member of the North Carolina State
Board of Elections; JUNE K.
YOUNGBLOOD, in her official capacity
as a member of the North Carolina
State Board of Elections,
Defendants-Appellees,
and
RALPH GINGLES; VIRGINIA NEWELL;
GEORGE SIMKINS; N. A. SMITH; RON
LEEPER; ALFRED SMALLWOOD; OSCAR
BLANKS; DAVID MOORE; ROBERT L.
DAVIS; C. R. WARD; JERRY B. ADAMS;
JAN VALDER; BERNARD OFFERMAN;
JENNIFER MCGOVERN; CHARLES
LAMBETH; ELLEN EMERSON; LAVONIA
ALLISON; GEORGE KNIGHT; LETO
COPELEY; WOODY CONNETTE; ROBERTA
WADDLE; WILLIAM R. HODGES,
Defendants.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
W. Earl Britt, District Judge; James Dickson
Phillips, Jr., Senior Circuit Judge, sitting by
designation; and Richard L. Voorhees, Chief District
Judge, sitting by designation.
(CA-92-202-BR)
2
Argued: October 27, 1997
Decided: August 19, 1998
Before LUTTIG, Circuit Judge, CAMPBELL, Senior Circuit Judge
of the United States Court of Appeals for the First Circuit,
sitting by designation, and TRAXLER, United States District Judge
for the District of South Carolina, sitting by designation.
_________________________________________________________________
Reversed and remanded by published opinion. Senior Judge Campbell
wrote the opinion, in which Judge Luttig and Judge Traxler joined.
_________________________________________________________________
COUNSEL
ARGUED: James Columcille Dever, III, MAUPIN, TAYLOR &
ELLIS, P.A., Raleigh, North Carolina, for Appellants. Edwin Marion
Spears, Jr., Senior Deputy Attorney General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appel-
lees. ON BRIEF: Thomas F. Ellis, Thomas A. Farr, MAUPIN, TAY-
LOR & ELLIS, P.A., Raleigh, North Carolina, for Appellants.
Michael F. Easley, North Carolina Attorney General, Tiare B. Smiley,
Special Deputy Attorney General, NORTH CAROLINA DEPART-
MENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
_________________________________________________________________
OPINION
CAMPBELL, Senior Circuit Judge:
This appeal arises from the denial by a majority of a three-judge
district court of attorney's fees to plaintiff-intervenors, some of whom
had actively participated in litigation successfully challenging the
constitutionality of North Carolina's 1992 congressional redistricting
legislation. We hold that, in the rather exceptional circumstances of
this case, an award of fees is warranted. In so holding, we reverse the
judgment of the district court.
3
I.
On March 12, 1992, a group of five plaintiffs from Durham, North
Carolina brought an action challenging the constitutionality of North
Carolina's racially gerrymandered First and Twelfth Congressional
Districts. These two oddly shaped districts were created pursuant to
that state's 1992 redistricting plan so as to provide for effective black
voting majorities. A three-judge district court, by majority vote, dis-
missed the action for failure to state a claim upon which relief could
be granted. See Shaw v. Barr, 808 F. Supp. 461, 469-73 (E.D.N.C.
1992), rev'd sub nom. Shaw v. Reno, 509 U.S. 630 (1993). Plaintiffs
appealed to the Supreme Court. On June 28, 1993, the Supreme Court
reversed and remanded. See Reno, 509 U.S. at 649.
On remand, the district court allowed a group of ten registered
Republican voters residing in the Fourth, Sixth, Ninth, and Tenth
Congressional Districts to join the action as permissive intervenors
("Original Intervenors"), on the condition that they adopt plaintiffs'
complaint. The district court ruled expressly that all plaintiffs and
Original Intervenors had standing, basing this conclusion on the fact
that they were registered to vote in North Carolina congressional elec-
tions and were assigned to vote under the challenged redistricting plan
at least in part because of race. See Shaw v. Hunt 861 F. Supp. 408,
426-27 (E.D.N.C. 1994), rev'd, 116 S. Ct. 1894 (1996). The court
went on to hold that North Carolina's redistricting plan did not violate
the Equal Protection Clause. See Hunt, 861 F. Supp. at 476.
Plaintiffs and Original Intervenors appealed to the Supreme Court.
On the same day that the Supreme Court noted probable jurisdiction,
see Shaw v. Hunt, 515 U.S. 1172, 1172 (June 29, 1995), the Court
decided United States v. Hays, 515 U.S. 737 (1995). The Hays Court
announced standing requirements different from those applied by the
district court to plaintiffs and Original Intervenors in the instant case.
Under Hays, parties have standing to challenge the constitutionality
of a district only if they live in that district or can demonstrate by spe-
cific evidence that they "ha[ve] personally been subjected to a racial
classification." Id. at 744-45. Hays cast doubt on the standing of Orig-
inal Intervenors and three of the plaintiffs, because they lived outside
the First and Twelfth Districts.
4
Original Intervenors proceeded to play an active role in the appeal
lodged in the Supreme Court. They filed their own brief and partici-
pated in oral argument. The Court's decision, when it came down,
was in their favor on the merits, holding that North Carolina's plan
violated the Equal Protection Clause. See Hunt , 116 S. Ct. at 1900-01.
However, following Hays, the Court also held that the three plaintiffs
who resided outside the challenged districts, and all Original Interve-
nors, who also resided elsewhere, lacked standing to challenge the
redistricting plan. Only the two plaintiffs living within the Twelfth
District had standing, and so the Court limited its holding to that dis-
trict. See id. at 1900. The Court nonetheless issued a supplemental
order stating that "petitioners Ruth O. Shaw, et al., and James Arthur
Pope, et al., recover from James B. Hunt, Jr., Governor of North Car-
olina, et al., Sixteen Thousand Seven Hundred Twenty dollars
($16,129.00) [sic] for their costs herein expended." Id. (order dated
6/13/97). As "James Arthur Pope, et al." are the Original Intervenors,
this order awarded them costs notwithstanding their lack of standing.
The Court then remanded the case to the three-judge district court for
further proceedings consistent with its holding.
On July 9, 1996, after the Supreme Court's opinion in Hunt but
prior to its issuance of judgment, plaintiffs and Original Intervenors
jointly moved in the district court for permission to amend their com-
plaint to add three plaintiffs from North Carolina's First Congressio-
nal District and six plaintiff intervenors from the First and Twelfth
Districts. Defendant-appellee Governor James B. Hunt, Jr. (the "Gov-
ernor") consented, and on July 12 the district court allowed the
motion. Three days later, plaintiffs and Original Intervenors filed an
amended complaint adding new plaintiffs and a second group of inter-
venors ("New Intervenors"). All of these persons had standing under
Hays to challenge the redistricting of the First and Twelfth Districts.
The relief sought in the amended complaint was identical to the relief
sought in the original complaint filed in 1992.
Plaintiffs and plaintiff-intervenors (both Original and New) contin-
ued in the action. Following submissions from the parties concerning
conformity with the Supreme Court's opinion, the three-judge district
court enjoined North Carolina from conducting elections under the
invalid redistricting plan after 1996. The court's judgment expressly
5
included all Original Intervenors and New Intervenors. The Governor
did not appeal from the court's judgment, which is now final.
Plaintiffs and plaintiff-intervenors filed a motion seeking attor-
neys's fees, expenses and costs. The parties entered negotiations,
which led to the Governor's paying the plaintiffs $425,000 for their
attorneys's fees. The Governor stipulated that the same figure would
constitute reasonable fees for plaintiff-intervenors, but refused to pay,
arguing that neither group of plaintiff-intervenors was a "prevailing
party" entitled to receive attorney's fees within the definition of the
fees statute. See 42 U.S.C. § 1988(b) (Supp. 1997).1 The stipulation
provided, inter alia:
If one or more of the plaintiff-intervenors is determined by
the court to be a "prevailing party" under 42 U.S.C. § 1988,
and also entitled to recover attorney's fees, costs and
expenses from the time of the commencement of the action,
defendants agree to pay such plaintiff-intervenors, through
their counsel, reasonable attorney's fees in the amount of
$425,000, plus interest from the date of these stipulations at
the statutory interest rate used by the North Carolina Depart-
ment of Revenue. If the court determines that none of the
plaintiff-intervenors is a "prevailing party" and none is enti-
tled to attorney's fees from the time of the commencement
of the action, the plaintiff-intervenors agree that the defen-
dants are not liable to any plaintiff-intervenors for any attor-
ney's fees, costs or expenses incurred in this action prior to
the date of these stipulations.
A majority of the three-judge district court denied plaintiff-
intervenors' motion for fees. The court agreed with the Governor that
Original Intervenors lack of standing prevented them from recovering
fees. The court held that, even assuming arguendo that Original Inter-
venors were prevailing parties, they should not recover due to "special
_________________________________________________________________
1 Section 1988 provides, in relevant part: "In any action or proceeding
to enforce a provision of 1981, 1981a, 1982, 1983, 1985, and 1986 of
this title, . . . the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee as part of the
costs." 42 U.S.C. § 1988(b).
6
circumstances": awarding fees would put them in a better position
than those plaintiffs without standing, who were precluded from
recovering fees. The court went on to hold that New Intervenors could
not recover fees because they had not "played the requisite significant
role in producing the outcome of this case." In the alternative, the
court stated that New Intervenors could recover fees only from the
time of their intervention, stating that any other award "would essen-
tially be one for the attorney, not the party. . . .[Such an award] not
only fails to effectuate the purposes of § 1988, but also contravenes
case law establishing that the right to attorney's fees belongs to the
party, not the attorney." One judge dissented. This appeal followed.
II.
Recovery of attorney's fees by these plaintiff-intervenors depends,
in the first instance, upon whether any of them qualifies as a "prevail-
ing party" within the language of 42 U.S.C. § 1988. See footnote 1,
supra. Unless they fit within this definition, plaintiff-intervenors are
subject to the "American Rule" requiring each party in litigation to
bear its own fees. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y,
421 U.S. 240, 269 (1975).
The principal barrier to affording "prevailing party" status to the
Original Intervenors was perceived by the district court to be their
lack of Article III standing. Hence we turn to that question first. Since
the issue is a purely legal one, we review it de novo.
As an initial matter, we note that persons within the generic cate-
gory of plaintiff-intervenors have often been found by courts to fit
within the rubric "prevailing party" for fees purposes. See, e.g.,
Hastert v. Illinois State Bd. of Election Comm'rs, 28 F.3d 1430, 1441
(7th Cir. 1993); Wilder v. Bernstein, 965 F.2d 1196, 1204 (2d Cir.
1992) (en banc); E.E.O.C. v. Strasburger, Price, Kelton, Martin &
Unis, 626 F.2d 1272, 1273 (5th Cir. 1980); see also 2 Sheldon H.
Nahmod, Civil Rights & Civil Liberties Litigation § 10:34, at 10-71
(4th ed. 1997) ("An intervening party can be a prevailing party enti-
tled to fees [under § 1988]."); 2 Martin A. Schwartz & John E. Kirk-
lin, Section 1983 Litigation: Statutory Attorney's Fees, § 2.2, at 15
(3d ed. 1997) ("[T]he intervenor who succeeds in litigation . . . may
qualify as a prevailing party under § 1988."). This accords with the
7
statutory language, since intervenors, both permissive (as here) and as
of right, appear in the Federal Rules under the general heading of
"Parties," see Fed. R. Civ. P. 24(a) and (b), and the case law treats
them as such, see Diamond v. Charles, 476 U.S. 54, 68 (1986) (stat-
ing that "intervenors are considered parties"). Further, the Senate
Report issued in connection with Congress's enactment of § 1988
specifically includes intervenors among the parties who are eligible
for attorney's fees as a result of their efforts to vindicate civil rights:
"[i]n the large majority of cases the party or parties seeking to enforce
[civil] rights will be plaintiffs and/or plaintiff-intervenors." S. Rep.
No. 94-1011, at 4 n.4 (1976), reprinted in 1976 U.S.C.C.A.N. 5908,
5912 n.4 (emphasis added). Courts have accordingly awarded fees to
persons falling within the plaintiff-intervenor category, provided they
have "play[ed] a significant role in the litigation." Grove v. Mead Sch.
Dist. No. 354, 753 F.2d 1528, 1535 (9th Cir. 1985); see also Wilder,
965 F.2d at 1204 (collecting cases).
Given the above, the threshold legal issue here boils down to
whether the absence of standing deprived the Original Intervenors of
the right to qualify for fees under § 1988. We see no reason why that
should be so in the exceptional circumstances of this case.
Key to our analysis is the Supreme Court's ruling that a party who
lacks standing can nonetheless take part in a case as a permissive
intervenor. See S.E.C. v. United States Realty & Improvement Co.,
310 U.S. 434, 459 (1940). Obviously, if lack of standing were a bar
to intervening party status, the Original Intervenors could not recover
fees here, since someone not a party could scarcely be a "prevailing
party" under § 1988. However, the Court held in U.S. Realty that it
was not an abuse of discretion to allow the Securities and Exchange
Commission to occupy the role of an intervenor even though it was
not directly involved in the factual dispute at bar. See id. at 460. The
Court declared that Federal Rule of Civil Procedure ("FRCP") 24(b),2
which governs permissive intervention, "plainly dispenses with any
requirement that the intervenor shall have a direct personal or pecuni-
ary interest in the subject of the litigation." Id. at 459; see also
_________________________________________________________________
2 "Upon timely application anyone may be permitted to intervene in an
action . . . when an applicant's claim or defense and the main action have
a question of law or fact in common." Fed. R. Civ. P. 24(b).
8
Employee Staffing Servs., Inc. v. Aubry, 20 F.3d 1038, 1042 (9th Cir.
1994) (stating that "the requirement of a legally protectable interest
applies only to intervention as of right under Rule 24(a), not permis-
sive intervention under Rule 24(b)"); Nash v. Blunt, 140 F.R.D. 400,
402 (W.D. Mo. 1992) (suggesting that, because redistricting chal-
lenges have a statewide impact, the argument for including in-state
intervenors without standing is especially strong).
It follows from U.S. Realty that Original Intervenors' lack of stand-
ing did not change their status as parties to the action. True, without
standing they could not have continued their intervenor status "in the
absence of the party [plaintiffs] on whose side intervention was per-
mitted." Diamond, 476 U.S. at 69 (holding that an intervenor's right
to continue a suit in the absence of the party on whose side interven-
tion was permitted is contingent upon a showing by the intervenor
that he fulfills the requirements of Art. III). But unlike the situation
in Diamond, the suit here was carried forward by plaintiffs who,
although reduced in number to two, went on to final judgment and
received reimbursement as prevailing parties under§ 1988. This
being so, we see no reason why Original Intervenors do not fit within
the mandate of § 1988.
The following factors further support their inclusion within the fees
statute.
First, the language of § 1988 does not mention Article III standing
as an added requirement, distinct from the stated criterion of "prevail-
ing party." It is true that a plaintiff without standing will not be able
to recover fees, but this is because the possession of Article III stand-
ing is interwoven into the very concept of plaintiff status. As dis-
cussed above, a permissive intervenor without standing may continue
to be a party so long as the suit is kept alive by a plaintiff. See id. at
68-69.
Second, while the case law applying § 1988 to intervenors who
lack standing is sparse, other courts have allowed attorney's fees to
intervenors who have apparently lacked standing. An example of such
a case is Wilder v. Bernstein, 965 F.2d 1196 (2d Cir. 1992) (en banc).
In Wilder, the full bench of the Second Circuit allowed nineteen pri-
vate child-care agencies, who were acting as intervenors, to recover
9
attorney's fees arising from an action challenging New York City's
foster care system. See id. at 1204. The Wilder court awarded fees
even though "intervenors" had not formally joined the action pursuant
to FRCP 24, see id. at 1199-1200, and had not asserted a violation of
their own rights,3 see id. at 1202-03. Yet the Wilder court also real-
ized the limitations on such awards to intervenors, citing Grove for
the proposition that "[a]wards to intervenors should not be granted
unless the intervenor plays a significant role in the litigation." See id.
at 1204 (citing Grove, 753 F.2d at 1535).
Third, awarding attorney's fees to these Original Intervenors is not
inconsistent with the Supreme Court's interpretation of Congress's
intent in enacting § 1988 and similarly worded fee-shifting statutes.
The Court has spoken of successful plaintiffs in civil rights cases as
"private attorney[s] general" and the"chosen instrument of Con-
gress." Independent Fed'n of Flight Attendants v. Zipes, 491 U.S.
754, 758-60 (1989) (quoting Newman v. Piggie Park Enters., Inc.,
390 U.S. 400, 402 (1968) and Christiansburg Garment Co. v.
E.E.O.C., 434 U.S. 412, 418 (1978)). Section 1988's legislative his-
tory contains statements urging courts to use "the broadest and most
effective remedies available to achieve the goals of our civil rights
laws." Senate Report at 3, reprinted in 1976 U.S.C.C.A.N. at 5910-11;
see, e.g., Wilder, 965 F.2d at 1203-04 (§ 1988 interpreted broadly).
Applying these standards, the unique role played here by Original
Intervenors supports an award of attorney's fees. This was a major
voting rights suit. On each of its two visits to the Supreme Court,
plaintiffs' and plaintiff-intervenors' position on the merits was vindi-
cated. The Governor does not question on appeal that Original Inter-
venors contributed significantly to the success of the litigation and has
stipulated to the reasonable amount of their fees. The record contains
an affidavit stating that their counsel did at least half the legal
research that was necessary with respect to discovery issues, motions
and other matters. See Affidavit of Robinson O. Everett ¶¶ 5-6. Their
_________________________________________________________________
3 Wilder was an en banc reversal of a panel holding that intervenors
could not recover fees unless they asserted a violation of their own civil
rights. See Wilder v. Bernstein, 944 F.2d 1028, 1033-34 (2d Cir.), rev'd
en banc, 965 F.2d 1196 (2d Cir. 1992). In citing Wilder, we do not nec-
essarily indicate agreement with the full extent of its holding.
10
attorney took an active role in serving written discovery, defending
depositions, responding to discovery motions, retaining expert wit-
nesses, interviewing lay witnesses, and preparing stipulations, briefs
and motions. Plaintiff-intervenors' counsel also participated at trial
and in argument before the Supreme Court. If recovery under § 1988
is meant to reward those who have undertaken successfully to fulfill
the role of a private attorney general, see Newman, 390 U.S. at 402,
plaintiff-intervenors appear to have been veritable embodiments of
that role.
Two major arguments have been advanced against allowing recov-
ery of a fee. First, the district court reasoned that since those plaintiffs
found to be without standing are not allowed to recover fees, plaintiff-
intervenors should likewise be barred. But we see no practical unfair-
ness, or, at least, none has been shown. The fact that only two plain-
tiffs survived the Court's standing requirements is unlikely to have
seriously reduced the total amount of fees awarded to plaintiffs' side.
To be sure, had all plaintiffs been found to lack standing, no fees
would have gone to plaintiffs. But in such event, the Supreme Court
would not have reached the merits of the case at all and neither plain-
tiffs nor plaintiff-intervenors would have been prevailing parties enti-
tled to attorney's fees. As previously noted, plaintiff-intervenors'
right to party status -- given their lack of standing -- is dependent
upon the existence of at least one plaintiff with Article III standing.
See Diamond, 476 U.S. at 68-69. As long as that requirement is met,
we see no unfairness in awarding appropriate fees to plaintiff-
intervenors as well as to the successful plaintiff or plaintiffs, all of
them having contributed significantly to the victory.
There is a second argument against a fees award to intervenors,
which we find more troubling. The Supreme Court has held that, in
order to qualify as a "prevailing party" within § 1988, a plaintiff must
have "obtain[ed] an enforceable judgment against the defendant from
whom fees are sought, or comparable relief through a consent decree
or settlement." Farrar, 506 U.S. at 111 (citations omitted); see also
S1 & S2, 21 F.3d at 51. A similar requirement appears in other fees
cases: "at a minimum, to be considered a prevailing party within the
meaning of § 1988, the plaintiff must be able to point to a resolution
of the dispute which changes the legal relationship between itself and
the defendant." Texas State Teachers Ass'n v. Garland Indep. Sch.
11
Dist., 489 U.S. 782, 792 (1989) (emphasis added). In Rhodes v.
Stewart, 488 U.S. 1 (1988), the Court reiterated the language that it
used in Hewitt v. Helms, 482 U.S. 755 (1987), stating that "[t]he real
value of the judicial pronouncement -- what makes it a proper judi-
cial resolution of a `case or controversy' rather than an advisory opin-
ion -- is in the settling of some dispute which affects the behavior of
the defendant towards the plaintiff." Rhodes, 488 U.S. at 4 (quoting
Hewitt, 482 U.S. at 761) (emphasis in original).
Applying this language to Original Intervenors here, it can be con-
tended that because they lack standing, there was no actual "case or
controversy" as between them and the defendant, hence the favorable
outcome of this case did not change "the legal relationship between
[the Original Intervenors] and the defendant," Texas Teachers, 489
U.S. at 792, nor did it "affect[ ] the behavior of the defendant towards
[them]," Hewitt, 482 U.S. at 761 (emphasis omitted).
There are two answers to this argument. The most obvious, of
course, is that the above cited precedents all dealt with the question
of what minima of relief a plaintiff -- not a Rule 24(b) intervenor --
must obtain from a defendant in a lawsuit in order to be entitled to
fees as a "prevailing party." Thus, Hewitt involved a plaintiff who
actually obtained no relief; Farrar, a plaintiff who received nominal
relief; Texas Teachers, a plaintiff who received partial relief; and
Rhodes, plaintiffs whose cause of action became moot. These
Supreme Court decisions indicate that where the relief a plaintiff
secures is so tenuous that the action itself does not resolve a true "case
or controversy," no award of fees to the plaintiff (or anyone) is justi-
fied. In the present case, however, the two plaintiffs with Article III
standing secured precisely the relief that they sought. There is no
question whatsoever as to the existence of a live controversy. Original
Intervenors, who had properly and formally entered the litigation as
intervenors under FRCP 24(b) in support of plaintiffs' cause, were
likewise successful in every ordinary sense of that word. As previ-
ously indicated, absence of standing does not strip plaintiff-
intervenors of intervenor status, see Diamond , 476 U.S. at 68-69,
hence an award of fees to these Original Intervenors raises no juris-
dictional concern.
12
A second reason strongly supporting a fees grant here is found in
the special circumstances of this case. No one seriously questions the
importance of Original Intervenors' contribution to the case, nor were
fees denied below because of such doubts. Until the Hays decision
came down, Original Intervenors, moreover, had good reason to
believe that they had Article III standing. The district court so held,
relying on case law indicating that a state voter need not actually live
within the contours of a flawed congressional district in order to be
injured by its unconstitutional establishment. See Hunt, 861 F. Supp.
at 426-27. When the Supreme Court rejected this theory, Original
Intervenors quickly did what they could to reestablish standing by
enlisting the New Intervenors. To deny fees to these successful and
significantly helpful plaintiff-intervenors, in these circumstances,
seems inequitable.4
While we, therefore, hold that Original Intervenors, being prevail-
ing parties, may recover their attorney's fees under§ 1988 for work
performed throughout the entire action, we emphasize that our hold-
ing is in no way meant to expand the category of persons entitled to
fees. Our holding is limited to bona fide parties to an action, a cate-
gory that may, in appropriate circumstances, include permissive inter-
venors, but does not encompass "amicus curiae, good samaritans, or
. . . litigious meddlers." Wilder, 965 F.2d at 1203 (citing Morales v.
Turman, 820 F.2d 728, 732 (5th Cir. 1987) (holding that amicus
curiae who never participated as a "party" was therefore not entitled
to fees)). District courts, of course, are vested with substantial discre-
tion to deny permissive intervention where inappropriate, thus con-
trolling those who as parties may potentially be entitled to fees. See
_________________________________________________________________
4 As an additional special circumstance, we note that the Supreme
Court itself granted costs to the Original Intervenors under Supreme
Court Rule 43(2) even after holding that they lacked standing. To be
sure, Rule 43(2) and § 1988 implicate different inquiries: an award of
costs under Rule 43(2) will not necessarily always imply that the party
prevailed and is eligible for attorney's fees under§ 1988. Cf. Kelly v.
Metropolitan County Bd. of Educ., 773 F.2d 677, 681 (6th Cir. 1985) (en
banc). Nonetheless, the Supreme Court's express recognition of Original
Intervenors' right to costs, in the same action resolving the standing
issue, further dilutes any contention that they ceased to be parties or did
not truly prevail.
13
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 351 n.4 (1983)
(noting that "permissive intervention under Fed. Rule Civ. Proc. 24(b)
may be denied in the discretion of the District Court").
Moreover -- and this is a point that we stress-- it is not every per-
missive intervenor who will be entitled to fees. Courts should deny
fees to intervenors who have failed to play a "significant role in the
litigation." Grove, 753 F.2d at 1535. Courts should certainly deny
fees to meddlesome or officious intervenors whose services have been
counterproductive or have, at most, been duplicative of work better
left to plaintiff's counsel. Cf. Donnell v. United States, 682 F.2d 240,
246 (D.C. Cir. 1982) (stating that Congress did not intend an award
of attorney's fees for an intervenor to "be as nearly automatic as it is
for a party prevailing in its own right"). All that we hold here is that,
in the rather exceptional circumstances of this case, Original Interve-
nors -- having satisfied all relevant criteria both to be "prevailing par-
ties" and to recover fees -- are entitled to recover their fees under
§ 1988.
Our holding today precludes New Intervenors' attempt to "relate
back" their claim for attorney's fees. Underlying that theory is the
purported inequity of denying fees for legal work done on behalf of
the Original Intervenors. Since Original Intervenors may recover
these same fees in their own right, there is no need to explore an alter-
nate theory, and, indeed, a finding for New Intervenors might improp-
erly allow the award of duplicative fees.
REVERSED AND REMANDED FOR AN AWARD
OF FEES TO ORIGINAL INTERVENORS
14