Planned Parenthood v. Attorney General

Opinions of the United

2002 Decisions States Court of Appeals

for the Third Circuit

7-11-2002

Planned Parenthood v. Atty Gen NJ

Precedential or Non-Precedential: Precedential

Docket No. 01-2581

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PRECEDENTIAL

Filed July 11, 2002

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 01-2581

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY;

HERBERT HOLMES, M.D.; DAVID WALLACE, M.D.;

GERSON WEISS, M.D., ON BEHALF OF THEMSELVES

AND THEIR PATIENTS

v.

*THE ATTORNEY GENERAL OF THE STATE OF

NEW JERSEY; NEW JERSEY BOARD OF MEDICAL

EXAMINERS; THE COMMISSIONER OF THE

NEW JERSEY DEPARTMENT OF HEALTH AND

SENIOR SERVICES

**NEW JERSEY LEGISLATURE, by and through,

DONALD T. DIFRANCESCO, in his capacity as President

of the New Jersey Senate and as the Representative of the

New Jersey Senate; JACK COLLINS, in his official capacity

as Speaker of the New Jersey General Assembly and as

the Representative of the New Jersey General Assembly

(Intervenor in D.C.), Appellants

*(Amended Pursuant to F.R.A.P. 43(c)(2))

**(Amended in accordance with Clerk’s Order

dated 12/12/01)

On Appeal From the United States District Court

For the District of New Jersey

(D.C. Civ. No. 97-cv-06170)

District Judge: Honorable Anne E. Thompson

Argued: March 7, 2002

Before: BECKER, Chief Judge, ALITO and

RENDELL, Circuit Judges.

(Filed July 11, 2002)

RICHARD F. COLLIER, JR.,

ESQUIRE (ARGUED)

DAVID J. TREIBMAN, ESQUIRE

Collier, Jacob & Mills

580 Howard Avenue

Corporate Park III

Somerset, NJ 08873

Counsel for Appellants

LEON FRIEDMAN, ESQUIRE

(ARGUED)

148 East 78th Street

New York, NY 10021

DARA KLASSEL, ESQUIRE

Planned Parenthood Federation

of America

810 Seventh Avenue

New York, NY 10019

TALCOTT CAMP, ESQUIRE

LOUISE MELLING, ESQUIRE

Reproductive Freedom Project

American Civil Liberties

Union Foundation

125 Broad Street, 18th Street

New York, NY 10004-2400

ED BAROCAS, ESQUIRE

American Civil Liberties Union of

New Jersey Foundation

35 Halsey Street, Suite 4B

Newark, NJ 07102

Counsel for Appellees

2

OPINION OF THE COURT

BECKER, Chief Judge:

This action was instituted by Planned Parenthood of

Central New Jersey, Herbert Holmes, M.D., David Wallace,

M.D., and Gerson Weiss, M.D. (the "plaintiffs") against, inter

alia, the New Jersey Legislature, challenging the

constitutionality of and seeking a permanent injunction

against the enforcement of the New Jersey Partial-Birth

Abortion Ban Act of 1997 (the "Act"), ch. 262., 1997 N.J.

Sess. Law Serv. 871-71 (West), codified at N.J. Stat. Ann.

S 2A:65A-5 to 7. The plaintiffs prevailed, and the District

Court awarded them $522,992.84 in attorneys’ fees

pursuant to 42 U.S.C. S 1988. The Legislature appeals the

fee award, raising objections as to the amount of the award

and the procedures followed in making it. The appeal also

presents two questions of first impression for us: (1)

whether a local rule that extends the time for filing a fee

application beyond that prescribed in Fed. R. Civ. P. 54(d)

is valid as a standing order within a proviso of that rule;

and (2) whether the New Jersey Legislature is immune from

liability for attorneys’ fees, given that it was solely

responsible for the defense of the legislation at issue.

We answer the first question in the affirmative,

concluding that District of New Jersey Local Rule 52(a) is

an "order of the court" for purposes of an exception in Fed.

R. Civ. P. 54(d), thereby extending the time to file a fee

application. Since the plaintiffs filed their fee application

within the time prescribed in the local rule, we affirm the

District Court’s order granting the plaintiffs’ requested

extension of the time to file their fee petition without motion

or notice, as is allowed under Fed. R. Civ. P. 6(b)(1).

We answer the second question in the negative. We

conclude that, while legislatures enjoy immunity for

promulgating statutes, it makes little sense to provide them

with this immunity when they step out of that role, as the

New Jersey Legislature did here when it intervened to

defend the constitutionality of the Act. We therefore hold

that when a legislature steps out of its role and intervenes

3

to defend a piece of (its) legislation, which the executive

branch is not willing to defend, it becomes the functional

equivalent of a defendant in the case and may be liable for

attorneys’ fees.

With respect to the defendants’ other contentions, we

affirm in part and vacate in part, remanding for

development of the record and further factual findings,

including the clarification of the District Court’s award of

25.5 hours of moot court time in preparation for oral

argument, which does not seem justified by the present

record. We reverse outright the District Court’s award of

fees for "observing" this Court during oral argument,

concluding that there can be no recovery of attorneys’ fees

for such activity.

I. Facts and Procedural History

On December 15, 1997, the plaintiffs filed a complaint

challenging the constitutionality of the Act under 42 U.S.C.

SS 1983 and 1988, seeking declaratory and injunctive relief,

and naming the Attorney General, in his official capacity,

the New Jersey Board of Medical Examiners, and the

Commissioner of the Department of Health and Senior

Services as defendants. The Act had been passed by the

Legislature in June 1997. After the then-Governor,

Christine Todd Whitman, vetoed it on the ground that it

was unconstitutional, the Legislature overrode the veto,

giving the Act immediate effect. The named defendants

declined to defend the Act, but put the plaintiffs"on notice

that [the Act] is the law of the State of New Jersey. The

Attorney General has not advised physicians . . . not to

comply with this law." On December 16, 1997, one day

after the complaint was filed, the Legislature alerted the

District Court of its intention to intervene "to vigorously

defend the constitutionality of the Act." The District Court

issued a temporary restraining order enjoining enforcement

of the Act, granted the Legislature’s formal motion to

intervene, and, with the parties’ consent, extended the

temporary restraining order until final resolution of the

case.

After a four-day trial, the District Court entered a final

judgment in favor of the plaintiffs and, on December 8,

4

1998, permanently enjoined the defendants from enforcing

any provision of the Act. On December 17, 1998, the

Legislature announced its intent to appeal. On December

24, 1998, more than 14 days after the judgment, which is

the time period prescribed for the filing of a fee petition

under Fed. R. Civ. P. 54(d)(2)(B), the plaintiffs moved for an

extension of time to file their fee application. Based on its

own local rule, which provided a 30-day deadline with the

possibility of an extension, the District Court entered an

order extending the time to file for attorneys’ fees until 30

days after the conclusion of all appeals in the case. On

January 5, 1999, the Legislature moved to vacate the

extension of time and to strike the plaintiffs’ fee application

as untimely. The District Court denied this motion.

This Court affirmed on the merits and entered its

judgment on July 26, 2000. See Planned Parenthood v.

Farmer, 220 F.3d 127 (3d Cir. 2000). On August 1, 2000,

the plaintiffs asked the District Court to clarify its

December 24, 1998 order, which allowed them to file their

fee application within "thirty days after the latest of: (1) the

expiration of Defendants-Intervenor Appellant’s time to file

a petition for certiorari to the United States Supreme Court;

(2) the denial of a petition for certiorari by the United States

Supreme Court; or (3) the granting of a petition for

certiorari and disposition of this case by the United States

Supreme Court." By letter dated August 15, 2000, the

District Court stated that the plaintiffs "have correctly

understood the deadline."

On November 21, 2000, the plaintiffs filed their fee

application in the District Court. The Legislature filed

opposition papers, arguing that it was immune from

liability for fees and that the fee application was both

untimely and excessive. The District Court heard oral

argument, and rejected the Legislature’s arguments with

respect to both immunity and untimeliness. The District

Court found that the plaintiffs were prevailing parties under

S 1983, filed an opinion and order rejecting the Legislature’s

objections, and granted the plaintiffs the requested

$522,992.84 in attorneys’ fees for the District Court trial,

the appeal to this Court, and work performed on the fee

application. The Legislature filed a timely Notice of Appeal,

5

challenging the District Court’s order extending the time for

the plaintiffs to file their fee application; its determination

that the New Jersey Legislature was not immune for

liability for fees and costs; and the award of fees. We have

jurisdiction over the appeal pursuant to 28 U.S.C.S 1291.

II. Timeliness of the Fee Applications

The threshold issue, which is purely a question of law, is

whether the plaintiffs’ initial request for an extension of

time on their fee application was timely. A decision to grant

an extension of time pursuant to Fed. R. Civ. P. 6(b) is

reviewed for abuse of discretion. Dominic v. Hess Oil V.I.

Corp., 841 F.2d 513, 516 (3d Cir. 1988). The legal

interpretation of a procedural rule is reviewed de novo.

Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000).

Fed. R. Civ. P. 54(d), which governs the awarding of

attorneys’ fees, states:

Unless otherwise provided by statute or an order of the

court, the motion must be filed and served no later than

14 days after entry of judgment; must specify the

judgment and the statute, rule, or other grounds

entitling the moving party to the award; and must state

the amount or provide a fair estimate of the amount

sought.

(emphasis added). The plaintiffs filed their request for an

extension of time on December 24, 1998, more than 14

days after the judgment was entered on December 8, 1998.

The District Court held that the motion was not time-

barred, and granted the extension, relying on District of

New Jersey Local Rule 54.2(a), which provides:

In all actions in which a counsel fee is allowed . .. , an

attorney seeking compensation for services or

reimbursement of necessary expenses shall file with

the Court an affidavit within 30 days of the entry of

judgment or order, unless extended by the Court . . . .

The Federal Rule, on its face, applies "[u]nless otherwise

provided by . . . [an] order of the court." Fed. R. Civ. P.

54(d).

6

According to the District Court, Local Rule 54.2(a)

constituted an "order of the court" and thereby extended

the time under Rule 54(d)(2)(B).1 The Legislature disagrees,

arguing that the local rule is not an "order of the court." In

its submission, District of New Jersey Local Rule 54.2(a)

conflicts with Fed. R. Civ. P. 54(d)(2)(B), and because a local

rule may not conflict with an applicable federal rule, see 28

U.S.C. S 2071(a) and Fed. R. Civ. P. 83(a)(1), the New Jersey

local rule is invalid. See Anchorage Assocs. v. Virgin Islands

Bd. of Tax Review, 922 F.2d 168, 173 (3d Cir. 1990)

("District courts are authorized to prescribe rules for the

conduct of court business so long as those rules are

consistent with the Acts of Congress and the Federal Rules

of Procedure.").

The Legislature further contends that, because the

motion for an extension of time was not timely under Fed.

R. Civ. P. 54(d)(2)(B), the District Court abused its

discretion in granting an extension by signing the order on

the same day it received the plaintiffs’ request without

providing the Legislature with an opportunity to be heard

pursuant to Fed. R. Civ. P. 6(b)(2) before it acted on the

motion. The plaintiffs respond that because the District of

New Jersey Local Rule 54.2(a) is an "order of the court," it

qualifies as an exception to the limitations period in Fed. R.

Civ. P. 54(d)(2)(B). Thus, the plaintiffs submit that the

District Court acted within its discretion in granting the

extension of the time to file without notice or motion, as is

allowed under Fed. R. Civ. P. 6(b)(1).

Every Court of Appeals to have addressed the issue has

decided that a local rule extending the time to file a motion

for fees is a "standing order," and, therefore, not

inconsistent with the federal rules. See Tire Kingdom, Inc. v.

Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.

2001); Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th

Cir. 1999); Eastwood v. Nat’l Enquirer, 123 F.3d 1249,

_________________________________________________________________

1. We note in this regard that the rule in question was part of the corpus

of the Local Civil and Criminal rules that were the subject of

renumbering "to correspond to their counterparts in the Federal Rules of

Civil and Criminal Procedure," which were adopted by the District Court

in an Order dated April 1, 1997.

7

1257 (9th Cir. 1997); Johnson v. Lafayette Fire Fighters

Ass’n, 51 F.3d 726, 729 (7th Cir. 1995). The rationale of

the Fifth, Seventh, Ninth, and Eleventh Circuits is best

described in Johnson, which was the first case to decide the

issue and the case most cited by the other circuits in

support of their position:

[A] local rule is an order of the court, at least for

purposes of Fed. R. Civ. P. 54(d)(2)(B). Local rules are

adopted by the majority of the judges in a district to

govern the practice and procedure of litigation in that

district. As such, local rules are, in effect, "standing

orders," such that [they] should be viewed as an order

of the court . . . . And while these standing orders

generally cannot conflict with the Federal Rules of Civil

Procedure, the Supreme Court and Congress have

frequently used the federal rules to adopt default rules

of procedure that are modifiable by the districts

through the adoption of local rules. See, e.g. , Fed. R.

Civ. P. 26(a)(1). We believe that the 14-day filing period

contained in Fed. R. Civ. P. 54(d)(2)(B) is one such

default rule and that the districts are free to modify the

filing period through local rules.

That our reading of Fed. R. Civ. P. 54(d)(2)(B) is the

most logical reading of the rule, is made apparent after

considering the prior law. Before the enactment of the

1993 Amendments, districts were free to adopt local

rules to govern the filing of fee petitions. See White v.

New Hampshire Dep’t of Employment Security, 455 U.S.

445 (1982). After White, many districts adopted local

rules to govern the filing of fee petitions. . . . If the

Supreme Court and Congress wanted to preempt these

local rules they would have done so in definite terms

that would not place practitioners in the difficult

position of guessing what time period governed the

filing of fee petitions. But Fed. R. Civ. P. 54(d)(2)(B)

does not contain clear language stripping districts of

their power to promulgate local rules to govern the

filing of fee petitions. Rather, the rule contains the

ambiguous phrase "order of the court," which we do

not believe evidences the intent of the Supreme Court

and of Congress to so fundamentally change the law in

this area.

8

Johnson, 51 F.3d at 729.

The District Court followed the Seventh Circuit’s

reasoning when it concluded that there was no

inconsistency in this case:

[P]laintiffs’ motion to extend time to file their fee

application was timely because [the local rule is] an

"order of the court" which extend[s] the 14-day limit

contained in Fed. R. Civ. P. 54(d)(2)(B). The Paoli case

[In re Paoli R.R. Yard PCB Litig., 221 F.3d 449 (3d Cir.

2000)] applies to instances where a Local Rule is

inconsistent with a Federal Rule. Fed. R. Civ. P.

54(d)(2)(B) provides that the Federal Rule may be

amended by an order of the court and therefore, there

is no inconsistency in this case.

We agree, and conclude that District of New Jersey Local

Rule 54.2(a) is an order of the court for the purposes of

Fed. R. Civ. P. 54(d)(2)(B). Thus, we are satisfied that the

plaintiffs had 30 days within which to file their application

for attorneys’ fees (or, in this case, a motion to extend

time). This construction seems highly appropriate in view of

the nature of the proceeding. Consideration of fee petitions

is often an extremely involved and time-consuming exercise

that can be burdensome to a busy district court, and

district courts ought to have the flexibility to control their

own calendars with respect to such matters.

Reviewing the District Court’s decision to grant an

extension of time pursuant to Fed. R. Civ. P. 6(b) for abuse

of discretion, Dominic v. Hess Oil V.I. Corp. , 841 F.2d 513,

516 (3d Cir. 1988), we are satisfied that the District Court

did not abuse its discretion, pursuant to Fed. R. Civ. P.

6(b)(1), to grant the extension of time without motion or

notice since the request for the extension was timely

pursuant to Local Rule 54.2(a).2

_________________________________________________________________

2. The Legislature also raises an argument with respect to the timeliness

of the fee application for appellate work. The plaintiffs asked us to

remand for consideration of appellate fees to the District Court or,

alternatively, to extend the time for the plaintiffs to apply for fees. The

Clerk referred the motion to the merits panel, granting the plaintiffs "an

extension of time to file the petition for fees and costs until October 6,

9

III. Legislative Immunity

The Legislature is typically immune from liability under

42 U.S.C. S 1983 and thus cannot generally be held liable

for fees under 42 U.S.C. S 1988. Supreme Ct. of Va. v.

Consumers Union, 446 U.S. 719, 732-34 (1980). While

legislative immunity protects the Legislature in its

legislative capacity -- i.e., for promulgating the Act at issue

in this case -- we conclude that the Legislature is not

entitled to immunity in this case because defending the Act

was an act outside of its legislative capacity.

In May v. Cooperman, 578 F. Supp. 1308 (D.N.J. 1984),

aff ’d, 780 F.2d 240 (3d Cir. 1985), the District Court for

the District of New Jersey was faced with precisely the

issue that we must address. The New Jersey Legislature

enacted a "moment of silence" statute that overrode the

Governor’s veto. When May brought suit, the Attorney

General of New Jersey stated that he would neither defend

the constitutionality of the statute nor discipline teachers

_________________________________________________________________

2000 or until the panel issues an order deciding the motion, whichever

occurs earlier." The merits panel subsequently addressed the motion,

relegating "consideration in the first instance of appellate attorneys’ fees

and costs to the District Court." The application for attorneys’ fees for

appellate work was filed on November 20, 2000, along with the

application for District Court fees.

The Legislature argues that once the panel decided to remand to the

District Court, the plaintiffs had 30 days from that decision, rendered on

October 6, to file their fee application pursuant to L.A.R. Misc. 108.1(a).

We disagree, and are satisfied that the District Court was correct in

concluding that the application was timely filed. The motion filed by the

plaintiffs, seeking an extension or remand of the application for appellate

fees, requested that we remand to the District Court so that the issue of

fees and costs for appellate work could be "considered with -- and on

the same schedule as -- the issue of fees and costs for trial work." Since

the motion requested the remand, on the same schedule as the issue of

fees for trial work, which we granted, the logical interpretation of the

order granting the remand is that it granted the motion to file a single

fee request all on one schedule. Such an order is undoubtedly within our

power. Thus, the District Court did not abuse its discretion in holding

that the November 20, 2000 application was timely filed with respect to

appellate fees.

10

who refused to implement it. The Legislature intervened to

defend the statute and "took an active role in defense of the

statute, beginning the day the complaint was filed." 578 F.

Supp. at 1310. The district court subsequently awarded

fees against the Legislature after determining that the

statute was unconstitutional, concluding that it was not

entitled to immunity.

Conceding that the Legislature was immune for

promulgating the statute, see Consumers Union v. Virginia

State Bar, 688 F.2d 218 (4th Cir. 1982), the court reasoned

that the "Legislature sought to perform a task which

normally falls to the executive branch, but which, in this

case, the executive branch refused to perform." 578 F.

Supp. at 1316. In this sense, the intervening legislators

"abandoned their legislative role and took on a quasi-

enforcement role by intervening to defend the statute.

[Thus, t]heir legislative immunity should not protect them

when they step outside the function for which their

immunity was designed." Id. at 1317.

The May court also noted that this result made practical

sense:

[T]he State defendants refused to defend the lawsuit

because of a good faith belief that the statute was

unconstitutional; the Legislature chose to intervene

and litigate vigorously because of a strong interest it

took in the statute. The result was that plaintiffs were

put to extensive and costly litigation, but are unable to

recover fees from the party from whom they would

normally recover fees under S 1988. Were they also

unable to recover from the defendant-intervenors, I

believe the intent of the fee statute would be thwarted.

If the Legislature were deemed immune, a major

loophole would be created in the statutory scheme for

reimbursing plaintiffs. Original defendants, otherwise

liable for fees, could remain passive in S 1983 actions,

leaving defense of the challenged laws to Legislatures

or others claiming to possess immunity from fee

liability. States, by this method, could defend

constitutional challenges to their statutes without

having to pay plaintiffs’ fees awards, which Congress

11

has acknowledged to be "an essential remedy if private

citizens are to have a meaningful opportunity to

vindicate the important Congressional policies" which

the civil rights laws contain. S. Rep. No. 94-1011, 94th

Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. &

Ad. News, 5908, 5909-10.

Id. at 1317-1318.

Although this issue was not reached on appeal when this

Court affirmed May, see May v. Cooperman , 780 F.2d 240

(3d Cir. 1985), we have subsequently indicated that this

rationale is persuasive. In Daggett v. Kimmelman , 617 F.

Supp. 1269 (D.N.J. 1985), the District Court for the District

of New Jersey followed the reasoning of May in awarding

attorneys fees against the New Jersey Legislature:

[T]his court is . . . in accord with the analysis set forth

in May v. Cooperman. The New Jersey Legislature was

absolutely immune from an award of an attorney’s fee

for enacting the Feldman Plan, but once the Legislature

intervened to defend the statute, even if it did so

because the executive branch refused to defend the

statute, the Legislature took on a quasi-enforcement

role, and gave up its immunity.

Daggett, 617 F. Supp. at 1279. On appeal to this Court, the

Legislature raised the issue of immunity, and we affirmed

the district court’s holding because the district court

"considered thoroughly" the contention and we agreed with

the District Court that the "contentions lack merit." Daggett

v. Kimmelman, 811 F.2d 793, 795 n.2 (3d Cir. 1987).

The Legislature argues that these cases were poorly

reasoned and are not valid precedent in light of

Independent Federation of Flight Attendants v. Zipes , 491

U.S. 754 (1989). Daggett, as a published opinion of this

Court, is binding upon us unless its validity was

undermined by Zipes, as is now argued. In Zipes, the

Supreme Court held that the Independent Federation of

Flight Attendants ("IFFA"), as intervenor, was not liable for

attorneys’ fees. Noting that "district courts should . . .

award . . . attorney’s fees against losing intervenors only

where the intervenors’ action was frivolous, unreasonable,

or without foundation," the Court concluded that it would

12

not impose liability on the IFFA because its "cases have

emphasized the crucial connection between liability for

violation of federal law and liability for attorney’s fees under

federal fee-shifting statutes." Id. at 761-62. The Court

concluded that the IFFA-intervenors were "blameless"

because they had not violated anyone’s civil rights.

Moreover, the IFFA became "a party to the lawsuit not

because it bore any responsibility for the practice alleged to

have violated [federal law], but because it sought to protect

the bargained-for seniority rights of its employees." Id. The

"central fact" for the Court was thus "that[IFFA] litigated

(and lost) not to avoid liability for violation of the law but to

prevent TWA’s bargaining away of its members seniority

rights in order to settle with respondents." Id. at 765-66.

The Legislature argues that Zipes is controlling to the

extent that it makes clear that the Legislature’s vigorous

defense of the Act does not make it liable for fees unless its

position was frivolous, unreasonable, or without foundation

because the "crucial connection between liability for

violation of federal law and liability for attorney’s fees under

federal fee-shifting statutes" is missing in this case. Id. at

762. The Legislature ignores a crucial distinction between

Zipes and this case. As we noted in Daggett , Zipes focused

on intervenors who entered the suit to protect the interests

of a third-party and a suit in which there was another

defendant who would be liable for the fees. As the District

Court in Daggett observed:

I have serious doubts about the applicability of Zipes

. . . . In Zipes, the Supreme Court reasoned that the

intervenors were completely "blameless," having had no

part in the constitutional violation of which plaintiffs

complained, and intervened only to protect their own

rights which were affected by a proposed settlement

agreement between plaintiffs and defendants.

Moreover, the Court reasoned that there were present

in the action "guilty" defendants, who would be liable,

in any event, for the counsel fees and costs incurred by

plaintiffs. I question the defendants-intervenors’

qualifications as "blameless" intervenors, in light of the

vigorous battle fought defending an unconstitutional

statute, and, in addition, cannot ignore the absence in

13

this case of a "guilty" defendant who otherwise would

be liable for these fees.

Daggett v. Kimmelman, 1989 WL 120742, at *7 n.6 (D.N.J.

July 18, 1989) (emphases added) (citations omitted).

Similarly, in Mallory v. Harkness, 923 F. Supp. 1546

(S.D. Fla. 1996) aff ’d, 109 F.3d 771 (11th Cir. 1997), the

district court awarded fees against the intervenor-Attorney

General and distinguished Zipes as follows:

The Zipes Court concluded that making blameless

intervenors liable for attorney’s fees simply did not

further the purposes behind the fee shifting statutes.

Thus, Zipes appears to establish the following rule:

where a losing intervenor is "innocent," attorney’s fees

will not be awarded against that intervenor unless the

intervention was frivolous, unreasonable, or without

foundation.

The intervenor in Zipes, however, substantially differs

from the AG in the case at hand. In Zipes, the

intervenor entered the case late in the litigation to

defend the rights of a third-party to the litigation . In

contrast, the AG entered the case early in

the proceedings and vigorously defended the

constitutionality of the statute throughout the entire

proceeding. It appears to the Court that the AG took all

steps ordinarily taken by a defendant and, in fact,

acted as the defendant in the case. Given these facts,

characterizing the AG as an "innocent" or"blameless"

intervenor would be inaccurate. The AG in the present

case clearly played a pivotal role.

The AG defended the unconstitutional statute

voluntarily and in doing so attempted to aid in the

offending statute’s enforcement.

923 F. Supp. at 1553 (emphasis added).

We are persuaded by the reasoning of these courts. While

legislatures enjoy immunity for promulgating statutes, it

makes little sense to provide them with this immunity when

they step out of that role. However, when a legislature feels

it necessary to perform what is generally regarded as an

executive function because the state executive branch

14

officials named as defendants in their official capacities

refuse to perform that function,3 the legislature is the

functional equivalent of a defendant in the case-- without

it, there would be no case. This is very different than the

situation contemplated in Zipes, where the intervenor

sought to protect the interests of a third-party; regardless

of the intervenor, there was an underlying ongoing dispute

between the plaintiff and the defendant. To read Zipes as

contemplating situations like the one before us, and the

ones at issue in May, Daggett, and Mallory, would be an

over-extension of Zipes and would thwart the purpose of

the fee-shifting statutes. Moreover, we find the Legislature’s

reliance on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.

1989), to be misplaced, as we explain in the margin. 4 Thus,

_________________________________________________________________

3. In the federal system, the Attorney General defends the

constitutionality of an act of Congress whenever a reasonable argument

can be made in defense of the act. See "The Attorney General’s Duty to

Defend the Constitutionality of Statutes," 5 U.S. Op. Off. Legal Counsel

25, 1981 WL 30934. If the Attorney General is unable to defend an act

of Congress, the Senate Legal Counsel is notified and may undertake the

representation. See 2 U.S.C. S 288k.

If New Jersey had followed a similar regime and the defense of the

statute at issue had been performed by the state attorney general, the

state would not be immune from fees. However, New Jersey is not

required to follow the federal scheme. It is not obligated to maintain a

separation of powers mirroring that of the federal government. It is free

to assign what are generally regarded as executive functions to the

legislature, and that, in effect, is what has occurred in this case and the

other cases noted above in which the Legislature undertook the task of

defending the constitutionality of a state law. But New Jersey cannot

escape an obligation under federal law to pay attorneys’ fees by

assigning this function to the Legislature.

4. The Legislature relies on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.

1989), in support of its position that Zipes is controlling. In that case,

the plaintiffs sued the Chairman of the Committee of Bar Examiners of

the Virgin Islands in a challenge to the residency requirement. The Bar

Association intervened. Plaintiffs ultimately won and the Bar Association

disputed its liability for the fee award. This Court concluded that the

Association, as a blameless intervenor, was not liable since it had

imposed no additional burden on the defendant. The case before us is

different in that the presence of the Chairman as a defendant in

Thorstenn meant both that there was someone liable for the fees

15

we conclude that the Legislature is not entitled to immunity

in this situation, where it has stepped out of the role for

which immunity is provided.

IV. District Court’s Award of Fees

The Legislature raises several arguments with respect to

the award of attorneys’ fees: (1) whether the Court

adequately explained the basis for its decision; (2) whether

the District Court erred in failing to hold an evidentiary

hearing on the "reasonable hourly rate"; and (3) whether

the Court abused its discretion in determining what hours

were eligible for compensation. We review de novo the

standards and procedures applied by the District Court in

determining attorneys’ fees, as it is a purely legal question.

Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d

Cir. 1997). We review the findings of fact for clear error.

Washington v. Philadelphia County Ct. of Common Pleas, 89

F.3d 1031, 1035 (3d Cir. 1996). The reasonableness of a fee

award itself is reviewed for abuse of discretion, Loughner v.

Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001), but

a court abuses its discretion when its ruling is founded on

an error of law or a misapplication of law to the facts, Doe

v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 154 (3d Cir.

1999). For the reasons set forth in the margin, we agree

with the Legislature’s claim that the District Court erred in

determining the reasonable hourly rate, and we therefore

vacate and remand for an evidentiary hearing.5 We turn to

the remaining issues.

_________________________________________________________________

notwithstanding the fact that the Bar Association was not, and that the

claims raised by the Bar Association were duplicative of a present

defendant. In this case, there would have been no litigation without the

Legislature’s intervention and so the rationale of Thorstenn -- that the

intervenor "imposed no additional burden on plaintiffs in the litigation"--

is not applicable. 883 F.2d at 219-220.

5. A prevailing party in a S 1983 action is entitled to reasonable

attorneys’ fees and costs under 42 U.S.C. S 1988. A reasonable fee is one

"adequate to attract competent counsel, but which does not produce

windfalls to attorneys." PIRG v. Windall, 51 F.3d 1179, 1185 (3d Cir.

1995) (citation omitted). A reasonable hourly rate multiplied by a

16

A. Hours Expended

The Legislature contends that the District Court abused

its discretion by awarding fees for some of the hours that

the plaintiffs requested. For work to be included in the

calculation of reasonable attorneys’ fees, the work must be

" ‘useful and of a type ordinarily necessary’ to secure the

final result obtained from the litigation." Pennsylvania v.

Del. Valley Citizens’ Council, 478 U.S. 546, 561 (1986).

1. Award of Fees to be Vacated and Remanded

A district court "must explain on the record the reasons

for its decisions." Rode v. Dellarciprete, 892 F.2d 1177,

1187 (3d Cir. 1990); see also Pa. Envtl. Def. Found. v.

Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir. 1998)

("[T]he district court must provide a concise but clear

explanation of its reasons for [a] fee award.") (internal

quotation marks and citation omitted). "[I]f the district

court’s fee-award opinion is so terse, vague, or conclusory

that we have no basis to review it, we must vacate the fee-

award order and remand for further proceedings." Gunter v.

_________________________________________________________________

reasonable number of hours expended -- the "lodestar" -- is the

presumptively reasonable fee. Loughner v. Univ. of Pittsburgh, 260 F.3d

173, 177 (3d Cir. 2001); Hensley v. Eckerhart , 461 U.S. 424 (1983). A

reasonable rate is the prevailing market rate in the relevant community.

Loughner, 260 F.3d at 180. The Legislature contends that the District

Court failed to conduct an evidentiary hearing on the "reasonable hourly

rate" component of the lodestar and that this constitutes reversible error.

See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 131-32 (3d Cir.

2000) (relying on generalized sense of what is customary and proper in

calculating hourly rates rather than evidence was reversible error). We

have held that if "hourly rates are disputed, the district court must

conduct a hearing to determine the reasonable market rates." Smith v.

Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997); see also

Lanni v. State of N.J., 259 F.3d 146, 149 (3d Cir. 2001). The District

Court did not hold an evidentiary hearing, notwithstanding the fact that

such rates were disputed by the six affidavits filed by the Legislature.

Thus, the District Court committed reversible error, and we vacate the

award to that extent and remand to the District Court for an evidentiary

hearing on the reasonableness of the hourly rates sought by the

plaintiffs.

17

Ridgewood Energy Corp., 223 F.3d 190, 196 (3d Cir. 2000).

In addition, as noted above, see supra note 5, if "hourly

rates are disputed, the district court must conduct a

hearing to determine the reasonable market rates." Smith v.

Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir.

1997); see also Lanni v. State of N.J., 259 F.3d 149, 149 (3d

Cir. 2001). Because we conclude that the District Court’s

fee award with respect to the following challenged requests

are "vague" and "conclusory" -- thereby hindering our

ability to review them -- or because the hourly rate for the

work was challenged and no evidentiary hearing was held,

we will vacate the following fee awards and remand for

further proceedings. Id.

a. Delegable Tasks

The Legislature challenges 18.25 billed hours for tasks

that, it argues, could have easily been delegated to non-

professionals such as paralegals, secretaries, and couriers,

including such tasks as document review, exhibit

preparation, and reviewing citations. In Halderman v.

Pennhurst State School & Hosp., we stated:

We have cautioned on a number of occasions that

when a lawyer spends time on tasks that are easily

delegable to non-professional assistance, legal service

rates are not applicable. We cannot condone "the

wasteful use of highly skilled and highly priced talent

for matters easily delegable to non-professionals."

49 F.3d 939, 942 (3d Cir. 1995) (citation omitted). The

District Court concluded that it was not "convinced the

work should have been delegated to a non-professional."

While the plaintiffs submit that the District Court did not

abuse its discretion in concluding that these hours were

not easily delegable, we are unable to make a determination

based on the opinion of the District Court. The plaintiffs

point out that "it would be unreasonable to expect

attorneys to delegate every ministerial duty they perform

because ‘the time spent delegating the task could well

exceed the time spent by the attorney’ performing the task

herself," and that, "each of these tasks did not take up

much of the attorneys’ time." Marisol A. v. Giuliani, 111 F.

18

Supp. 2d 381, 395 (S.D.N.Y. 2000). However, we do not

know from the District Court opinion what tasks were at

issue here, and who performed these tasks -- either senior

or junior level attorneys. Moreover, there is an issue of the

appropriate hourly rate for the performance of such tasks,

which will require an evidentiary hearing. See supra note 5.

We therefore vacate and remand the award of fees for

delegable tasks pursuant to Gunter, supra.

b. Travel Time

Out-of-pocket expenses are included in the concept of

"attorneys’ fees" as "incidental and necessary expenses

incurred in furnishing effective and competent

representation," and thus are authorized by S 1988. See

Remarks of Congressman Drinan, 122 Cong. Rec. H12160

(daily ed. 1 Oct. 1976). The authority granted inS 1988 to

award a "reasonable attorneys’ fee" includes the authority

to award "reasonable out-of-pocket expenses . . . normally

charged to a fee-paying client, in the course of providing

legal services." Associated Builders & Contractors of La., Inc.

v. The Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.

1990). The Supreme Court held in Missouri v. Jenkins, 491

U.S. 274 (1989), addressing the "more difficult question [of]

how [additional out-of-pocket expenses are] to be valuated

in calculating the overall attorney’s fee," id. at 285, that

"the prevailing practice in a given community" is to govern

whether such out-of-pocket expenses are billed separately,

and whether they are billed at cost or at market rates. Id.

at 288.

Heeding the admonition in Jenkins, we have observed

that travel time is an out-of-pocket expense underS 1988

that is generally recoverable "when it is the custom of

attorneys in the local community to bill their clients

separately for [it]." Abrams v. Lightolier Inc., 50 F.3d 1204,

1225 (3d Cir. 1995) (looking to S 1988 cases to determine

whether to award out-of-pocket expenses in a case under

the New Jersey Law Against Discrimination). Implicitly

rejecting the contention of the defendants that travel time

is not compensable, the District Court awarded it, but there

is no indication that the District Court reviewed any

evidence that this was the custom in New Jersey-- the

19

relevant, local community -- as it should have. However,

the District Court’s ultimate conclusion was not in error, as

travel time is apparently compensable in New Jersey. See,

e.g., Abrams, 50 F.3d at 1225 (predicting that the New

Jersey Supreme Court would hold that travel time and

expenses are recoverable as party of an attorneys’ fee

award); H.I.P. v. Hovnania, 676 A.2d 1166, 1176 (N.J.L.

Div. 1996) (awarding fees for travel time).

The Legislature also challenges the rate at which such

travel time should be compensated. Again, this issue is

guided by Jenkins and the holding that a court must look

to the practice in the local community. In this case, the

District Court awarded fees for travel time billed at the

maximum rate, yet there is no indication that this is the

practice in New Jersey. The Legislature contends that the

hourly rate for travel time should be no more than $100.

See ARC v. Voorhees, 986 F. Supp. 261, 271-72 (D.N.J.

1997); H.I.P., 676 A.2d at 1176. We note, however, that in

the cases cited by the Legislature, the parties requested

$100 compensation for travel time and were awarded that

amount. This case presents a situation in which the hourly

rate for travel time is disputed. Therefore, the best course

of action is to remand for a determination of the

appropriate rate pursuant to Smith v. Philadelphia Housing

Auth., 107 F.3d 223, 225 (3d Cir. 1997) (concluding that if

there is a dispute as to hourly rates, the district court must

conduct a hearing to determine the reasonable market rate)

and Jenkins, 491 U.S. at 287-88 (concluding that "the

prevailing practice in a given community" is to govern

whether such out-of-pocket expenses are billed separately,

and whether they are billed at cost or at market rates).

Thus, while we agree that reasonable travel time may be

compensated, we vacate that aspect of the award, and

remand for an evidentiary hearing to determine the

appropriate hourly rate at which the plaintiffs should be

compensated.

c. Time Litigating the Fee Application.

A party entitled to an award of attorneys’ fees is also

entitled to reimbursement for the time spent litigating its

fee application. See Prandini v. Nat’l Tea Co. , 585 F.2d. 47,

20

53 (3d Cir. 1978). However, as the Supreme Court observed

in Hensley v. Eckerhart, 461 U.S. 424 (1982), a "request for

attorney’s fees should not result in a second major

litigation." 461 U.S. at 437. The Legislature argues that the

amount of time devoted to the fee litigation and

compensated for by the District Court was excessive. In

addition, the Legislature challenges the District Court’s

conclusion that the hours billed to prepare the fee

application should be compensated at the same hourly rate

as the work performed on the merits of the case because

the application "involve[d] several complex issues and

extensive research."

Although the Legislature argued that the hours were

excessive, nowhere does the District Court address this

contention. In addition, there seems to be a conflict

between the Legislature and the plaintiffs as to how many

hours were actually claimed for compensation. The

Legislature contends that 61.7 hours were expended on the

initial fee papers and that 64.5 hours were spent on the fee

litigation that arose out of the initial request for fees. As we

read the record, the plaintiffs requested 29.3 hours on the

initial petition and 64.5 hours for litigating the fee petition.

However, it is not clear from the District Court’s opinion

precisely for how many hours the plaintiffs were

compensated in the award for time spent on the fee

application. Because the District Court performed scant

analysis, if any, of the hours, there are no findings on the

reasonableness of the plaintiffs’ claim. Thus, we"have no

basis for determining the reasonableness or accuracy" of

the District Court’s award. Loughner v. Univ. of Pittsburgh,

260 F.3d 173, 179 (3d Cir. 2001).

In addition, with respect to the Legislature’s contention

as to the appropriate hourly rate for work on the fee

petition, all that was said by the District Court is that the

hours will be compensated at the same hourly rate as the

work performed on the merits. Yet, as we have previously

stated, a district court must hold an evidentiary hearing

when rates are disputed. Smith v. Philadelphia Housing

Auth., 107 F.3d 223, 225 (3d Cir. 1997).

We will vacate the award of fees for work performed on

the fee petition and remand for further proceedings

21

pursuant to Gunter, supra, and we also remand for an

evidentiary hearing to determine the hourly rate pursuant

to Smith, 107 F.3d at 225.

d. Oral Argument Preparation

The Legislature argues that the District Court abused its

discretion in awarding 121 hours for preparation for the

oral argument for the merits appeal. Included in these

hours are 25.5 hours of moot court time and 4.5 hours of

observing oral argument before this Court. The District

Court held that it could not "conclusively find that [those

hours] were unreasonable and unnecessary. Furthermore,

the Court does not find the additional hours billed by

plaintiffs preparation of the appeal to be excessive as

plaintiffs were required to respond to thirteen (13) issues

listed by the Legislative Defendants for appeal."

In Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001),

we stated:

A reasonable fee for hours spent preparing for a legal

argument should be limited to hours reasonably

necessary for a lawyer to become familiarized with the

facts and the law pertaining to the issue to be argued,

an analysis of the opponent’s argument, and questions

anticipated to be posed by the court. Under the fee

shifting statute, the losing party is expected to pay for

hours reasonably spent in the argument and its

preparation, but not for excessive hours, or hours spent

in learning or excessively rehearsing appellate

advocacy.

256 F.3d at 187 (emphasis added). Under Maldonado, time

spent rehearsing oral advocacy, i.e., "moot court," may be

compensated as long as the time requested is not

"excessive." The District Court made no mention of

Maldonado, deciding instead that it could find no reason

why these hours were "unreasonable" or "unnecessary." Yet

25.5 hours of moot court time seems excessive within the

meaning of Maldonado. Even assuming that an oral

argument is 30 minutes per side, 25.5 hours would enable

a lawyer to practice his argument over 50 times. We

assume that litigators have a baseline competency in oral

22

advocacy that does not require such extensive rehearsal at

the possible expense of an opposing litigant. We will

therefore vacate this award of fees, remanding to the

District Court for a determination of the reasonable number

of hours for which the plaintiffs may be compensated.

In addition, while Maldonado permits compensation for

preparing for oral argument, we will not permit

compensation for observation of the Court to which

argument will be made. While such observation may be

generally instructive, it is the kind of thing that should be

part of a lawyer’s general experience, not charged to a

specific case. Therefore we will vacate the District Court’s

award of such fees.

As for the remaining 61 hours, to which there is only a

generalized exception, the District Court noted that the

plaintiffs were "required to respond to thirteen (13) issues

listed by the Legislative Defendants for appeal." While the

plaintiffs are certainly entitled to compensation for hours

that are not "excessive" under Maldonado , given the generic

nature of both the challenge to such fees and the

determination that they are reasonable, we "have no basis

for determining the reasonableness or accuracy" of the

District Court’s award although we are here faced with a

challenge to it. Loughner v. Univ. of Pittsburgh , 260 F.3d

173, 179 (3d Cir. 2001). We will therefore vacate the award

of fees for the remaining 61 hours spent preparing for oral

argument and remand for further proceedings.

e. Researching and Writing Briefs

The District Court approved 365 hours for briefing in the

District Court and 564 hours for briefing the merits appeal.

The District Court found "the hours [sought] regarding

preparation of briefs to be reasonable given the complex

and unprecedented nature of this action." In addition, the

District Court noted that "counsel for the Legislative

Defendants billed substantially more hours than[those for

which] plaintiffs seek reimbursement." Indeed, the

Legislature billed 902 hours for the merits appeal.

According to the District Court, this supported its

determination that the plaintiffs’ request for compensation

was reasonable, especially given the nature of the case.

23

On appeal, the Legislature’s argument consists of nothing

more than the following retort to the District Court’s

conclusion:

All plaintiffs had to do -- and all they did -- was rely

on existing abortion jurisprudence and insist that

partial-birth abortions are no different from other

abortions. Nothing ‘complex’ or ‘unprecedented’ was

involved. The Legislature did the heavy lifting, so it is

no surprise that its attorneys billed more time.

While we disagree with the Legislature’s contention that

this was "all" that the plaintiffs had to do, we do think that

the amount of hours spent briefing is excessive. However,

the District Court’s opinion offers no basis for review. See

Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 179 (3d Cir.

2001). Pursuant to Gunter, supra, we will vacate the award

of fees for time spent on briefing this case, both in the

District Court and in this Court, and remand for further

proceedings.

2. Award of Fees to be Affirmed

The fee awards to be discussed in this segment of the

opinion are supported by "a concise but clear explanation"

of the District Court’s reasons for the fee award. See Pa.

Environ. Def. Foundation v. Canon-McMillan School Dist.,

152 F.3d 228, 232 (3d Cir. 1998). Moreover, we agree with

the District Court that the plaintiffs’ work in the areas

described infra was " ‘useful and of the type ordinarily

necessary’ to secure the final result obtained from the

litigation." Pennsylvania v. Del. Valley Citizens’ Council, 478

U.S. 546, 561 (1986) (citation omitted). In addition to the

arguments we will discuss, the Legislature also makes an

argument that the District Court erred in holding that the

description of the work done during 391.75 hours out of

the total number of hours billed were specific enough for an

award of fees. We explain our disagreement with the

Legislature on this point in the margin.6

_________________________________________________________________

6. A fee petition must be specific enough for a court "to determine if the

hours claimed are unreasonable for the work performed." Washington v.

Philadelphia County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir.

24

a. The Expert Who Did Not Testify

The Legislature argues that 120 hours of work performed

by an expert, Dr. Carolyn Westhoff, was not useful and no

fees should be awarded for time spent preparing her for

testimony when she was, in fact, never called to testify. The

District Court concluded that the time spent on Dr.

Westhoff was "compensable as it was both successful and

useful to the Court in formulating its findings of fact." See

Planned Parenthood v. Verniero, 41 F. Supp. 2d 478, 483

n.1 (D.N.J. 1998) (district court merits decision relying on

declaration of Westhoff). The plaintiffs spent approximately

120 hours on work relating to Westhoff ’s anticipated trial

testimony, but she never testified, as the District Court

observed, because "when time ran over [she] could not be

rescheduled as a result of scheduling conflicts." Instead,

Dr. Westhoff ’s declaration was admitted into evidence in

redacted form and then relied upon in the findings of fact.

The plaintiffs not only prepared Dr. Westhoff for a two-

phase deposition taken by the Legislature, but also

successfully opposed the Legislature’s motion to exclude

her testimony, and prepared her for direct and cross-

examination. As noted above, the day her examination was

scheduled, testimony ran over and because of the

schedules of the court, the Legislature’s witness, and Dr.

_________________________________________________________________

1996) (internal quotation marks and citation omitted). As we have

observed:

[A] fee petition should include "some fairly definite information as to

the hours devoted to various general activities, e.g., pretrial

discovery, settlement negotiations, and the hours spent by various

classes of attorneys, e.g., senior partners, junior partners,

associates." However, "it is not necessary to know the exact number

of minutes spent nor the precise activity to which each hour was

devoted nor the specific attainments of each attorney."

Id. at 1037-38 (quoting Rode v. Dellarciprete, 892 F.2d 1177

(3d Cir. 1990)). We have reviewed the time entries that the

Legislature complains about and agree with the District

Court that these entries are sufficiently specific. We

therefore affirm the District Court’s award of fees for those

hours.

25

Westhoff, rescheduling was difficult and a stipulation was

negotiated whereby twenty-seven of the thirty-six

paragraphs in her declaration were admitted instead of live

testimony.

The plaintiffs’ preparation was necessary since they could

not have known that Dr. Westhoff was not going to testify

and could not have announced their intention to admit the

declaration without the Legislature’s having the opportunity

to depose her and agree not to cross-examine her.

Moreover, her work product was used in the trial. In light

of the aforementioned, the District Court did not abuse its

discretion in concluding that the attorneys did not waste

time on the work they did with respect to Dr. Westhoff, and

that such work was compensable within the meaning of

Delaware Valley, supra, and we therefore affirm the award

of these fees.

b. The Unsuccessful Summary Judgment Motion

Included in the fee award are 123.8 hours spent

preparing a summary judgment motion that was never

accepted for filing and was never considered on the merits.

The District Court concluded that this time was

compensable since the plaintiffs "relied" on their summary

judgment brief, upon order of the District Court, instead of

filing a post-trial brief, which made the work on the motion

"necessary," "successful," and "useful." We conclude that

the District Court did not abuse its discretion in

determining that these hours were compensable and that

its explanation was clear, concise, and, therefore, sufficient.

Since the summary judgment brief was eventually

submitted in lieu of a pre-trial brief, and a post-trial brief,

the work was certainly "necessary" and "useful," and we

therefore affirm the award of fees.

c. "Learning Curve" Time

The District Court permitted recovery of fees for 19.5

hours spent by newly-assigned attorneys getting"up-to-

speed" on the plaintiffs’ case. As the District Court stated,

"While the Court agrees that the losing party should not be

expected to pay for the time a prevailing party spends

26

coming up to speed on an area of law it is unfamiliar with,

the time a party spends reviewing the facts and underlying

documents of a case is compensable." We agree. The

Legislature cites authority for the proposition that hours

billed as a result of "re-staffing" the case at will cannot be

recovered, see, e.g., Marisol A. v. Giuliani, 111 F. Supp. 2d

381, 395-96 (S.D.N.Y. 2000) (decreasing award of fees

because of excessive turnover), but that case is

distinguishable because there was no excessive re-staffing

here.

In short, there is no indication that these attorneys were

not "necessary" to securing the outcome in the case. As

such, it would be "necessary" for them to spend time

getting "up-to-speed" on the case to be of assistance. In

addition, 19.5 hours is not much time for two attorneys

who are getting up-to-speed on a fairly complex and high-

profile case. We find no abuse of discretion, and therefore

affirm this aspect of the fee award.

d. Alleged Overstaffing

The Legislature submits that the plaintiffs’ case was

overstaffed and that the District Court erred in rejecting the

Legislature’s objection to multiple billings. The District

Court concluded that:

the complexity and specialized medical knowledge

necessary for the proper presentation of this case

warranted the utilization of multiple attorneys. . ..

Plaintiffs’ case was efficiently staffed . . . .[C]ounsel

were assigned specific tasks . . . . Given that this case

was essentially a case of first impression and that the

issues involved were complex and very technical, the

Court finds plaintiffs’ staffing of multiple attorneys to

be reasonable and necessary to provide adequate

representation for plaintiffs.

The District Court also found that, even when an attorney

was not addressing questions to a witness or presenting

argument to the court, counsel "provided necessary support

for each other."

We have written that, "[i]n many cases, the attendance of

additional counsel representing the same interests as the

27

lawyers actually conducting" the litigation is"wasteful and

should not be included in a request for counsel fees from

an adversary." Halderman v. Pennhurst State Sch. & Hosp.,

49 F.3d 939, 943 (3d Cir. 1995). We have thus often

disallowed compensation for more than one lawyer

performing either trial or office work. See, e.g., Lanni v.

State of N.J., 259 F.3d 146 (3d Cir. 2001). However, we

conclude that the District Court did not abuse its discretion

in rejecting the Legislature’s claim of overstaffing. This case

presented multiple, complex legal questions and was an

issue of first impression, decided prior to the Supreme

Court’s decision in Stenberg v. Carhart, 530 U.S. 914

(2000), in which the Court struck down the Nebraska

partial birth abortion statute similar to the one at issue in

this case. Given the nature of the case, even the Legislature

found it necessary to use "other partner-level attorneys"

and "associates, law clerks and paralegals." Quite simply,

the magnitude of the case mandated the help of numerous

attorneys for both parties.

Moreover, plaintiffs’ declarations establish appropriate

staffing by demonstrating that the various attorneys were

assigned specific tasks. Even if the attorneys had worked

on similar tasks, this would not be per se duplicative. As

the First Circuit has noted, "[c]areful preparation often

requires collaboration and rehearsal." Rodriguez-Hernandez

v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1988); see

also Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 358-59

(8th Cir. 1997) (refusing to reduce hours for multiple

counsel). Given the nature of the case, and, as noted by the

District Court, "the complexity and specialized medical

knowledge necessary for the proper presentation of this

case," we cannot say that the District Court clearly erred in

concluding that plaintiffs’ case was not overstaffed. We

therefore affirm the District Court’s award of these fees.

V. Conclusion

We conclude that the District of New Jersey Local Rule

52(a) is an "order of the court" for purposes of Fed. R. Civ.

P. 54(d), thereby extending the time to file a fee application.

Thus, we affirm the District Court’s order granting the

plaintiffs an extension of time to file their fee application.

28

We also conclude that when a legislature steps out of its

traditional role of promulgating statutes and intervenes to

defend the constitutionality of an act which the executive

branch is unwilling to defend, it becomes the functional

equivalent of a defendant and may be liable for attorneys’

fees.

We vacate the order and remand to the District Court for

an evidentiary hearing on the reasonable hourly rate. With

respect to the particular challenges to the fee award in this

case, we vacate the order and remand to the District Court

for development of the record and further factual findings

with respect to the award of fees for: 1) delegable tasks; 2)

travel time; 3) time spent on the fee petition; 4) oral

argument preparation; and 5) researching and writing

briefs. We affirm the District Court’s order awarding fees

for: 1) work performed by Dr. Westhoff; 2) the unsuccessful

summary judgment motion; 3) time spent by new attorneys

who were getting "up to speed" on the case; and 4) the so-

called "ambiguous" time entries.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

29