Petition for Writ of Certiorari — District of Columbia Board of Elections & Ethics v. Turner
Supreme Court brief2004
Ask Donna
What actually matters in this document.
Text
Supreisie: Court. |
/
Q3lL647 JUN 200
No
In the Supreme Court of the Anited States
OCTOBER TERM, 2003
DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS,
Petitioner,
v.
WAYNE TURNER, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
ROBERT J. SPAGNOLETTI
Attorney General
EDWARD E, SCHWAB
Deputy Attorney General
DONNA M. MURASKY*
Senior Litigation Counsel
*Counsel of Record
OFFICE OF THE ATTORNEY GENERAL
FOR THE DISTRICT OF COLUMBIA
441 4” Street, N.W.
6" Floor South
Washington, D.C. 20001
(202) 724-5667
TIMOTHY K. ARMSTRONG
STACEY H. KING
HOWREY SIMON ARNOLD & WHITE
1299 Pennsylvania Avenue, NW
Washington, D.C. 20004
(202) 783-0800
Attorneys for Petitioner
QUESTION PRESENTED
More than one hundred federal fee-shifting statutes
give district courts “discretion” to fashion a “reasonable
attorney’s fee.” The question presented is whether, as most
Circuits have ruled, these fee-shifting statutes allow district
courts to apportion a fee award among defendants, even
when a prevailing plaintiff receives less than a fully
compensatory fee award, or whether, as the D.C. Circuit has
held, district courts have no discretion to apportion in this
circumstance and must hold responsible for the entire fee
award a relatively nonculpable defendant, even a defendant
who aligned itself with plaintiff throughout the litigation.
)
ot.
PARTIES TO THE PROCEEDING
Pursuant to Supreme Court Rule 14.1(b), petitioner
states that the parties to the proceeding are as follows:
District of Columbia Board of Elections and Ethics,
Petitioner;
Wayne Turner, Respondent;
Yes on 59, Respondent;
Cornelius Baker, Respondent;
Steve Pardieck, Respondent;
Jim Graham, Respondent.
- ill -
TABLE OF CONTENTS
GPR REe Se GIEY PURINE HEED vovssecacseessoveresesessesesorservovevereeeerexsvere i
PARTIES TO THE PROCEEDING. ...........cccccccssssscessssosecsceee il
BAERS FE AU THORITIFG. cssecessssssosesecevesosetssceveveseneserssseees Vv
IE MEI OY kccsssevevecvesceyscenseveséveeesesnsuvesenseveseeenesesevenes l
sac baniinabindeiiinsscsbeniewdecsnrvisoaniiaboriniieinmenboveres 2
STATUTORY PROVISIONS AT ISSUE ........ccccccccecceseseeees 2
Pe RMIENET S OE BBO CAINE occ ecsesnssaseversessosesseovecsssasesosers 2
REASONS FOR GRANTING THE WRIT ...........ccccceseseeeee 8
I. THE D.C. CIRCUIT IS IN CONFLICT WITH
OTHER CIRCUITS AS TO WHETHER
FEDERAL FEE-SHIFTING STATUTES
ALLOW A DISTRICT COURT TO
APPORTION ATTORNEY'S FEEG...........ccccccsceceseeeeeee 10
II. THE D.C. CIRCUIT'S DECISION
DISALLOWING FEE APPORTIONMENT
DOES NOT COMPORT WITH THIS COURT'S
PR PEPIN Is: vasesinssecvovenesvexvessesnntionsovvoriveerecreeonves 16
I ios bas esihinictipinipeusteecesaitinnesovetivinaencsincsssolentele 20
INDEX TO APPENDICES
Opinion of the United States Court of Appeals for the
District of Columbia Circuit dated January 23,
_____ FESS SRS NATE ee |e ee Na ee la
-iv-
Order of the United States Court of Appeals for the
District of Columbia Circuit on Denial of Petition
for Rehearing En Banc, March 10, 2004............. cee 17a
District Court’s Memorandum and Order, January 8,
Ua asoesiissiesdibicaicassdodpcinneaacdaaadadmiataaainiatlapeiniiats 18a
District Court’s Order, February 14, 2003 0.0... eee 23a
Magistrate Judge’s Memorandum Opinion, October :
Bs EE sauiichcnadbicedaacieaadshualoniniibeaanamneamMats 25a
Magistrate Judge’s Memorandum Opinion, July 24,
MITT ‘cdivnisbiscicinihadeancatieinad bicanititaainidiideadibaaenmadbiaiesiaieiammniaiulanael 40a
Magistrate Judge’s Memorandum Opinion, March 21,
RA ee a RR DSO NOE ey OOO LED 57a 7
Text of Pertinent Statutory Provisions ...............csccceseeeees 67a
|
EIR ARGO PRT ROR
TABLE OF AUTHORITIES
CASES
Blanchard v. Bergeron, 489 U.S. 87 (1989) ........... 18
Corder v. Gates, 947 F.2d 374 (9th Cir. 1991)....... 15
Council for Periodical Distributors Ass’ns
v. Evans, 827 F.2d 1483 (11th Cir. 1987)..... 14, 15
Farrar v. Hobby, 506 U.S. 103 (1992).............. 16, 17
Firebird Society v. Members of Board of
Fire Commissioners, 556 F.2d 642
GE. ie tosis ctrtediesinhebicaitaaalacanann 13, 14
Hen.ey v. Eckerhart, 461 U.S. 424
PD iiscitnnshetinieiataictaicieamneine 16, 17, 18
Herbst v. Ryan, 90 F.3d 1300 (7th Cir. 1996)... 12, 13
Independent Federation of Flight Attendants
v. Zipes, 491 U.S. 754 (1989)... ceeceeseseeees 3, 16
Jones v. Espy, 10 F.3d 690 (9th Cir. 1993)....... 11,12
Knights of Ku Klux Klan v. East Baton
Rouge Parish School Board, 735 F.2d 895
EPI TD iscsi cvicsiaibaeibeisibicalbsnieabbedgidaatiasadiaess 15
Koster v. Perales, 903 F.2d 131
II I sichietinianiciidiidi es 14
Little Rock School District v. Pulaski County
Special School District, 787 F.2d 372
° Vie
CO Sai SEI wincuvssscscensscintaiiceseeseistieianimnneenciens 15
Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, 478 U.S. 546 (1986)... 2
Sable Communications, Inc. v. Pacific Telephone
& Telegraph Co., 890 F.2d 184
COIN GAN. DEI sncetnnsrecuisessevsiceninceniienninediodieniicnen 12
Southeast Legal Defense Group v. Adams,
657 F.2d 1118 (9th Cir. 1981)... ee eeeees 10, 11
STATUTES
Be IA... & TR Pviccsicinsibesnincivninheeiadnimiaremens 2
20 UB, 9 BUC iticiictmnneaonion 2, 6, 11
GO UB, © FOO vrnscnienisiinienananiindiaiianaiin 2, 6, 11
Pub. L. No. 105-277, § 171, 112 Stat. 2681 (1998)... 4
5. 42... EOTED .nicnmisnbociedamansiaa 2
heer ae i RIB TRG ALIN OO ce WK
dG ws We tar Sata el ge er Ae OES
Jn the Supreme Court of the United States
DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS,
Petitioner,
Vv.
WAYNE TURNER, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
Petitioner District of Columbia Board of Elections
and Ethics respectfully petitions for a writ of certiorari to
review a decision of the United States Court of Appeals for
the District of Columbia Circuit.
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the District of Columbia Circuit (App. 1a) is reported at 354
F.3d 890. The order denying the petition for rehearing and
for rehearing en banc (App. 17a) is reported at No. 03-7030,
2004 U.S. App. LEXIS 4658. The opinion of the district
court relating to the attorney’s fees at issue in this petition
(App. 18a) and granting plaintiffs’ motion to reconsider and
awarding fees of $61,529 against the Board of Elections.
The opinions of the magistrate judge relating to these fees
itn
(App. 25a) are reported at 170 F. Supp. 2d 1, No. 98-2634,
2001 U.S. Dist. LEXIS 23437, and at 183 F. Supp. 2d 22.
JURISDICTION
The decision of the United States Court of Appeals
was issued on January 23, 2004. Petitioner filed a timely
petition for rehearing and rehearing en banc on Monday,
February 23. It was denied on March 10, 2004. This Court
has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS AT ISSUE
The statutory provisions at issue are reproduced in the
Appendix pursuant to S. Ct. R. 14.1(f). (App. 67a). They are
the Civil Right Attorneys’ Fee Act of 1976 (42 U.S.C.
§ 1988), and the Equal Access to Justice Act (28 U.S.C.
§ 2412(d)).
STATEMENT OF THE CASE
Congress has enacted more than 100 federal fee-
shifting statutes granting district courts “discretion” to award
a “reasonable attorney’s fee” to prevailing parties.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 562 (1986). Until the decision for which
review is sought here, the Circuits, consistently with this
Court’s jurisprudence, had uniformly interpreted the
language of the typical federal fee-shifting statute to permit
district courts to apportion fees among defendants, based on
considerations such as relative culpability and the relative
time a plaintiff spent litigating against each defendant. The
Circuits applied such an approach even when a district court
determined that a reasonable attorney’s fee was less than a
fully compensatory fee.
Fad CRN RS eg
YS
The D.C. Circuit has now ruled as a matter of law that
district courts do not have discretion to apportion in this
circumstance. It thus has departed from the approach of its
sister Circuits and has ignored this Court’s admonition that
“nothing” in federal fee-shifting statutes gives prevailing
plaintiffs “hegemony over all the other rights and equities
that exist in the world.” /ndep. Fed'n of Flight Attendants v.
Zipes, 491 U.S. 754, 764 n.4 (1989). And it has done so in a
particularly compelling case for apportionment. Here, the
defendant being held responsible for all fees not only aligned
itself with plaintiffs from the outset of the litigation but also
requested and received the relief it, along with plaintiffs,
sought. It is being held fully responsible, moreover, because
plaintiffs negligently failed to file a timely fee petition
against the defendant which enacted the legislation causing
plaintiffs harm; intervened as a defendant; and litigated to the
hilt in the district court unsuccessful arguments against both
plaintiffs and the defendant aligned with them.
A. The D.C. Medical Marijuana Initiative and the
Barr Amendment
On September 17, 1998, the District of Columbia
Board of Elections and Ethics (“the Board”) certified
Initiative 59, the District of Columbia Medical Marijuana
Initiative, for placement on the November 3, 1998, District of
Columbia general election ballot.!
In response, on October 21, 1998, Congress enacted
Section 171 of the District of Columbia Appropriations Act
1 This Initiative was designed to allow chronically ill individuals to
obtain and use marijuana for medical purposes under the care of a
physician without violating the District of Columbia Uniform Controlled
Substances Act.
eS
for fiscal year 1999. Section 171, known as the Barr
Amendment, specifically targeted Initiative 59, providing:
None of the funds contained in [the District of
Columbia Appropriations Act] may be used to
conduct any ballot initiative which seeks to
legalize or otherwise reduce penalties
associated with the possession, use, or
distribution of any schedule I substance under
the Controlled Substances Act... or any
tetrahydrocannabinols derivative.
Pub. L. No. 105-277, § 171, 112 Stat. 2681-150 (1998).
Because the ballots had already been printed and
mailed, however, Initiative 59 remained on the ballot and was
favorably voted upon by District residents in the election.
B. The District Court Proceedings
is Filing of the Lawsuit
On October 30, 1998, just four days before the
election, Wayne Turner and others (“Turner”) filed a
complaint challenging the Barr Amendment on First
Amendment grounds. Turner further argued that the Barr
Amendment did not apply to expenditures on post-election
activities, and thus permitted the Board to release and certify
the election results.
Following the election, the Board did not tabulate the
votes on Initiative 59, based on the belief that such action
would violate the Barr Amendment. As a result, the Board
moved on November 6 for a declaratory judgment that the
Barr Amendment was unconstitutional. The Board also
requested expedited review and leave to tabulate and
7 2
announce the results in time for the November 18 Board
meeting where all the election results were to be certified.
On November 6, Turner applied for a temporary
restraining order and moved for a preliminary injunction
directing the Board to release the results of the vote on
Initiative 59. The Board did not oppose Turner’s application
or motion.
On November 9, the United States filed an opposition
to Turner’s requests. After a hearing, the district court
denied Turner’s requests.
ys The United States’ Intervention as Defendant
On November 23, 1998, the United States moved to
intervene as a defendant in the case. The court granted the
motion on November 30.
That same day, all three parties moved for summary
judgment. Both the Board and Turner urged that the Barr
Amendment was unconstitutional and requested leave to
announce and certify the election results. The United States,
however, argued that the Barr Amendment was constitutional
as a valid exercise of Congressional authority over the
District of Columbia. On December 10, both the Board and
Tumer filed oppositions to the United States’ motion for
summary judgment, and the United States filed an opposition
to both of their motions for summary judgment. On
December 16, all three parties filed reply briefs. Again both
the Board and Turner directed their reply briefs entirely to
arguments opposing the United States’ motion, and the
United States argued against both their motions.
3. The District Court’s Merits Decision.
~*
On September 17, 1999, the district court construed
the Barr Amendment as not prohibiting counting, releasing,
or certifying the results of the vote on Initiative 59. A
contrary construction, the district court reasoned, would have
required it to invalidate the Amendment on constitutional
grounds. The court granted the Board’s November 6, 1998,
motion for an order authorizing it to announce and certify the
election results. Finally, the court granted Turner’s motion
for summary judgment insofar as it argued that the Barr
Amendment did not prevent the Board from computing and
certifying election results.
The United States did not appeal the decision.
4. Turner’s Application for Attorney’s Fees and the
Magistrate’s Decision
On March 31, 2000, Turner filed a petition for
attorney’s fees from the Board pursuant to 42 U.S.C. § 1988
and from the United States under 28 U.S.C. § 2412(d)(1)(A),
the Equal Access to Justice Act (““EAJA”).
Turner’s request was referred to a magistrate judge
who, on July 24, 2001, denied it under the EAJA because it
had been filed three and a half months after the deadline for
filing a fee request had run, and thus fell outside the “limited
waiver’ of federal sovereign immunity found in the EAJA.
= Turner did not appeal the magistrate’s decision but
instead sought joint and several recovery of all legal fees
from the Board. Turner argued that, irrespective of the
United States’ liability for attorney’s fees, the Board was
fully liable under section 1988 for all the fees he had
incurred throughout the litigation. The Board opposed on the
grounds that it had been a defendant in name only and, in
fact, both it and Turner had been aligned throughout the
proceedings and had prevailed.
i7.
The magistrate judge, on October 23, 2001,
apportioned responsibility and expressly declined to impose
joint and several liability. The magistrate found the United
States was responsible for initially suppressing the election
results and reasoned that it would be unfair to impose joint
and several liability simply because Turner had failed to
make a timely fee request against the United States.
The magistrate found the Board liable for $4,113 in
fees.
5. The District Court’s Order Apportioning Fees
Turner appealed the magistrate’s apportionment of
fees. He argued that the magistrate judge erred in
apportioning attorney’s fees and asked that the Board be
found jointly and severally liable for all attorney’s fees.
On January 8, 2003, the district court on de novo
review found that Turner cvuld have received a fully
compensatory fee had he timely filed a request for fees from
the United Sates under the EAJA. The court agreed that
apportionment in this situation was a fair result.
The court did, however, increase the amount of fees
the Board would be required to pay based on what the court
determined were the three phases of the litigation: (1) the
time period up to November 6, 1998, when the Board filed its
first pleading; (2) post-November 6, 1998; and (3) the fee-
application stage.
For the period up to November 6, the court found the
Board responsible for 87% of Turner’s fees. The court
determined the Board was not wholly responsible because the
United States was “solely responsible” for enacting the Barr
Amendment, and thus was significantly responsible for
os
causing the election results to be suppressed and for
instigating the litigation.
For the period after November 6, when the Board and
Turner were allied in seeking to overturn the Barr
Amendment, the court determined that the Board was not
responsible for any fees because all further litigation was
instigated solely by the United States.
Finally, for the fee-application stage, the court
apportioned 47% of Turner’s attorney’s fees to the Board.
The apportionment was based on the percentage of pages
devoted to obtaining fees from the Board in Turner’s
application for fees.
C. The District of Columbia Circuit’s Decision
Turner appealed. The D.C. Circuit ruled, as a matter
of law, that district courts do not have discretion to apportion
fee responsibility when apportionment would result in less
than a fully compensatory fee award for a prevailing plaintiff.
This factor, according to the court, trumps all other factors
that district courts might otherwise fairly and equitably take
into account. Accordingly, it held the Board jointly and
severally liable for all of Turner’s fees for the merits
litigation.
REASONS FOR GRANTING THE WRIT
There is a conflict among the Circuits on the question
whether a district court has discretion to apportion attorney’s
fees under the typical federal fee-shifting statute when
apportionment results in a plaintiff not being fully
compensated. Although other Circuits have determined that
attorney’s fees can be apportioned even where a plaintiff will
obtain less than a full award, the D.C. Circuit has now held
that such apportionment cannot occur.
Tn Se
ee ee = ig ee
«9.
Before this case, district courts had discretion in
fashioning a reasonable fee award to take into account not
only plaintiff's interest in receiving fees for a meritorious
claim but also countervailing rights and equities. The courts
strove to ensure not only that plaintiffs received a just award,
but also that defendants were not held responsible for fees
attributable to other defendants. The fact-specific case-by-
case balancing of these competing values has been respected
by the Circuits that review a district court’s decision for a
abuse of discretion. |
The D.C. Circuit’s decision upsets this traditional
analysis in two related, but individually erroneous, respects.
First, the D.C. Circuit held that failure to grant an award
jointly and severally, resulting in plaintiff not being fully
compensated, is an error of law despite other Circuits’
holdings to the contrary. Second, the D.C. Circuit failed to
take into account the language of the typical federal fee-
shifting statute, this Court’s prior holdings, and
considerations of fairness and justice, instead applying a
mechanistic rule.
In both of these respects, the D.C. Circuit’s decision
departs from the considered views <i its sister Circuits.
Review by this Court is necessary voth to clarify the proper
standard of appellate review of a district court’s fee award
under the typical federal fee-shifting statute and to specify
the proper analytical methodology that should guide such
awards by the district courts in the first instance. The better
view, contrary to the decision below, respects the statutory
“discretion” of the district court to award a “reasonable
attorney’s fee.” Under this view, a district court may
apportion a fee award, even if such apportionment results in
less than a fully compensatory award, and limits appellate
review to ascertaining whether the district court abused its
discretion in balancing all the relevant rights and equities.
-10-
I. The D.C. Circuit is in Conflict With Other
Circuits as to Whether Federal Fee-Shifting
Statutes Allow a District Court to Apportion
Attorney’s Fees.
There is a conflict between the D.C. Circuit and its
sister Circuits over whether a district court has discretion to
apportion attorney’s fees under federal fee-shifting statutes.
The opinion below characterizes the issue as involving the
question whether an award of fees under a federal fee-
shifting statute that results in a plaintiff being less than fully
compensated is an error of law. (App. 8a). Although the
court below states that it would “normally defer to a
thoughtful rationale of the district court so long as it achieved
a result that was fair to the parties,” it declined to review the
district court’s decision deferentially because, in the D.C.
Circuit’s view, the district court had adopted a “novel
application of a comparative fault theory” that denies “the
prevailing plaintiff a fully compensatory fee on a common
set of claims against the defendants.” (App. 8a).
The district court’s rationale, however, was in no way
a ‘novel’ approach to analyzing attorney’s fees. To the
contrary, the district court’s analysis is quite harmonious
with the decisions of other Circuits and is not an error of law.
The Ninth Circuit, for example, has held that
apportionment determinations are best left to the discretion of
district courts. In Southeast Legal Defense Group v. Adams,
657 F.2d 1118 (9™ Cir. 1981), a pre-EAJA case, it upheld a
lower court’s award of a less than fully compensatory fee
against the state defendant under section 1988 because the
federal defendants were immune from fees. The district
4%.
court determined that the state defendant was responsible
only for fees incurred in plaintiffs’ case against the state
defendant, not in plaintiffs’ case against the federal
defendants, and thus apportioned the fees accordingly.
Plaintiffs appealed contending they were entitled to 100% of
their fees from the state defendant. The Ninth Circuit
disagreed, finding that the case did not involve a reduction in
plaintiffs’ fees, but rather reflected the fact that plaintiffs
were entitled to fees only for their action against the state
defendant. Because plaintiffs were not entitled to fees
against the federal defendants, they could not recover them
from the state. See id. at 1125.
In Jones v. Espy, 10 F.3d 690 (9" Cir. 1993), ihe
court affirmed a district court’s apportionment of attorney
fees as between two defendants. The plaintiff had requested
fees from the state defendant based on 42 U.S.C. § 1988 and
from the federal defendant based on the EAJA. The district
court apportioned fees rather than holding the defendants
jointly and severally liable. Plaintiffs argued that by
apportioning the fees, the federal defendant would not have
to pay the full cost of plaintiffs’ attorney fees, as section
2412(d) caps hourly fees, and thus plaintiffs would not be
able to collect their “full” award unless they could collect the
remainder of the fee award from the state defendant. The
Ninth Circuit ruled that apportionment is “mandated in these
situations in order to ensure that a defendant was not liable
for a fee award greater than the actual fees incurred against
that defendant.” Jd. at 691.2
2 The D.C. Circuit distinguished Southeast Legal and Jones v. Espy on
the ground that they involved a separate claim against the United States.
(App. 14a). However, as Southeast Legal states, plaintiffs in that case
“prevailed on” only “their eighth claim, which challenged the FHWA
[Federal Highway Administration] approval of the state’s selection of a
particular corridor for [a] . . . proposed highway as being violative of 23
ee
Similarly, in Sable Communications, Inc. v. Pacific
Telephone & Telegraph Co., 890 F.2d 184 (9" Cir. 1989), the
Ninth Circuit ruled that a district court abused its discretion
in determining the extent of a defendant’s liability by holding
the defendant jointly and severally liable for all of plaintiff's
attorney’s fees. The Ninth Circuit noted that a district court
must “‘insure a fair result for both parties.’” Jd. at 194. The
court noted that if a district court determines that one
defendant’s action was the focus of the litigation and
required a larger portion of the plaintiff's attorney time, “it is
appropriate to allocate the burden of the fee award
accordingly.” Jd. at 194. Indeed, the court found a district
court should take note of the extent of a defendant’s
culpability in determining fee awards. See id.
In Herbst v. Ryan, 90 F.3d 1300 (7" Cir. 1996), the
Seventh Circuit also examined the question of allocation of
attorney’s fees. The court noted that the allocation of
attorney’s fees remains an “area in which there is no simple
formula of universal applicability” and thus hesitated in
assessing the wide variety of circumstances district courts
face in determining proper allocations of fee awards. /d. at
1304. The court did, however, provide some guidance for
informing a district court’s discretion in determining the
proper means of allocation in particular cases.
First, a district court should consider the broad
purpose federal fee-shifting statutes play in ensuring the
statute’s goals. See id. Second, the court should determine
whether the injury to the plaintiff is divisible among the
defendants and, if not, what is the relative responsibility of
U.S.C. § 128(a) . . .” 657 F.2d at 1125. And Jones v. Espy expressly held
that plaintiffs’ causes of action against the federal and state defendants
were “inextricably intertwined.” 10 F.3d at 692 n.2. Accordingly, these
cases support the Board.
~ ft,
each defendant. See id. at 1305. The Seventh Circuit
explained that, although it is frequently appropriate to hold
defendants jointly and severally liable for attorney’s fees:
[C]eurts must be careful, however, to do so
consistently with the preexisting background
of substantive liability rules. However, joint
and several liability is not appropriate in every
case involving an indivisible injury. For
instance, it may be appropriate for the district
court to apportion fees between an active
instigator of a wrong and a more passive
codefendant who had a more peripheral or
ministerial role in the wrong.
Id. (emphasis added; citations omitted). Third, the court
should take into account other institutional concerns. See id.
Finally, the court should make every effort to “‘achieve the
most fair and sensible solution that is possible.’”” Jd. (quoting
Grendel’s Den v. Larkin, 749 F.2d 945, 960 (1* Cir. 1984)).3
The Second Circuit has adopted a similar approach.
In Firebird Society v. Members of Board of Fire
Commissioners, 556 F.2d 642 (2° Cir. 1977) (per curiam),
the Second Circuit affirmed the district court’s decision not
to award prevailing plaintiffs fees against a municipality for
an aspect of the litigation. In Firebird, both the plaintiffs and
the defendant successfully opposed a motion to intervene and
set aside a consent decree. The district court decided not to
3 The D.C. Circuit cited Herbst for the principle that it “ ‘is frequently
appropriate to hold all defendants jointly and severally liable for
attorneys’ fees in cases in which two or more defendants actively
participated in a constitutional violation.”” (App. 12a). To be sure,
Herbst made this statement but its holding and rationale explain the
exceptions to that general principle and upheld fee apportionment as not
constituting an abuse of discretion.
« 14s
award plaintiffs fees against the municipality for this aspect
of the litigation.
The Second Circuit upheld the district court decision,
determining that because the municipality had “joined in
opposing intervention and as to that issue were as much
prevailing parties as the [plaintiffs], [t]here is no viable
theory advanced which would permit the recovery of legal
fees and costs in these circumstances.” Id. at 644 (emphasis
added). In addition, the court noted that one of the crucial
factors guiding its decision was thai “in the early stages of
this suit several crucial concerns of the plaintiffs were
resolved by notable concessions of the defendants which
minimized the risk of litigation.” /d.
In Koster v. Perales, 903 F.2d 131 (2° Cir. 1990), in
turn, the court held that a district court may allocate fee
awards between the responsible parties, setting the
percentage each party is liable for where culpability is
unequal, or it may hold the responsible parties jointly and
severally liable for the fee award. See id. at 139. Either way,
however, “[t]he allocation of fee liability is a matter
committed to the district court’s discretion and will not be
disturbed unless the determination evidences an abuse of
discretion.” Jd. (citing Hensley v. Eckerhart, 461 U.S. 424,
437 (1982)).
The Eleventh Circuit has similarly granted discretion
to the district courts to determine when an award should be
made joint and several and when it should be apportioned. In
Council for Periodical Distributors Ass’ns v. Evans, 827
F.2d 1483 (11 Cir. 1987), the court stated that fees did not
always need to be apportioned, particularly where two or
more defendants actively participated in a constitutional
violation. However, “in cases [where one defendant is not
the prime instigator of the effort], it may be more appropriate
«i.
for a district court to apportion fees between the active
instigator of a wrong and a more passive co-defendant who
had a more peripheral or ministerial role in the wrong.” /d. at
1487. Indeed, where one defendant is solely or largely
responsible for a single claim within the litigation, the court
may hold that defendant for all fees related to that claim. See
id. at 1488. “The initial decisions of whether and how to
apportion fees, however, is best done by the district court.”
Id. In apportioning the fees, the court instructs that the
district court should make “‘every effort to achieve the most
fair and sensible solution that is possible.”” /d. (quoting
Grendel's Den, 749 F.2d at 960).
In short, until the D.C. Circuit’s decision here, the
Circuits had uniformly held that a district court should be
given the discretion to prescribe apportionment “when the
time expended by the plaintiff in pursuing each defendant
was grossly unequal.” Corder v. Gates, 947 F.2d 374, 383
(9" Cir. 1991). Accord Little Rock Sch. Dist. v. Pulaski
County Special Sch. Dist., 787 F.2d 372, 374 (gs Cir. 1986)
(apportioning fees based on time expended in case involving
intervenors); Knights of Ku Klux Klan v. East Baton Rouge
Parish Sch. Bd., 735 F.2d 895, 901 (5" Cir. 1984) (upholding
a district court’s allocation of 90% of fees to the federal
government since the federal government played the major
role in the dispute underlying the lawsuit).
These authorities make clear that, contrary to the
opinion of the court below, the district court’s approach to
apportionment rested on a firm precedential basis and was in
no meaningful sense “novel” nor, based on these authorities,
was it an error of law. The D.C. Circuit’s claim that
apportionment is only justifiable where a claim is
“fractionable” is erroneous and does not work. (App. 14a).
To the contrary, the district court’s apportionment here
. .
—
would have been affirmed by the D.C. Circuit’s sister
Circuits.
Il. The D.C. Circuit’s Decision Disallowing Fee
Apportionment Does Not Comport With This
Court’s Jurisprudence.
In its decision, the D.C. Circuit repeatedly made
reference to Hensley v._Eckerhart, 461 U.S. 424, 429 (1983),
for the proposition that the district court must be reversed
because Turner did not receive a fully compensatory fee
award based on apportioning most of the fees to an immune
defendant. (App. 9a, 10a).
To be sure, Hensley holds that district courts, barring
special circumstances that would render a. award unjust,
should grant a successful civil rights plaintiff an award of
attorney’s fees. See id. at 429 (quoting H.R. Rep. No. 94-
1558, at 1 (1976); S.-Rep. No. 94-1011, at 4 (1976)).
However, Hensley does not hold, and this Court has never
held, that a prevailing plaintiff has a right to a fully
compensatory award no matter what. Indeed, in Hens/ey this
Court held that a prevailing plaintiff may not recover fees for
time spent on distinct, unsuccessful claims. See Hensley, 461
U.S. at 440.
The D.C. Circuit’s decision disregards this Court’s
admonition that “nothing” in federal fee-shifting statutes
gives prevailing plaintiffs “hegemony over all the other rights
and equities that exist in the world.” Indep. Fed’n of Flight
Attendants, 491 U.S. at 764 n.4. Instead, “the judicial role is
to reconcile competing rights that Congress has established
and competing interests that it normally takes into account.”
Id.
For example, in Farrar v. Hobby, 506 U.S. 103
(1992), citing to Hensley, this Court noted that a district court
|
does have discretion to award low fees, or no fees, under
federal fee-shifting statutes based on the facts of the case.
See id., at 118. The Court noted that in some circumstances,
“even a plaintiff who formally ‘prevails’ under § 1988 should
receive no attorneys’ fees at all.” /d. at 115.
In Farrar, the Petitioner was technically a “prevailing
party” under the statute, but the Court reviewed the facts of
the case and the outcome to determine whether Petitioner
was entitled to a full award of attorney fees. Simply because
the Petitioner was a prevailing party, this Court did not find a
mechanistic application of the fee-shifting statute was
required or even reasonable. In fact, the Court interpreted the
Statute as “expressly grant[ing] district courts discretion to
withhold attorney’s fees from prevailing parties in
appropriate circumstances: [The statute] states that a court
‘may’ award fees ‘in its discretion.’” Jd. at 119 (O’Connor,
J., concurring).
While the exception to fee awards has often
been articulated separately from the
reasonableness inquiry, sometimes it is
bound up with reasonableness: It serves as a
short-hand way of saying that, even before
calculating a loadestar or wading through all
the reasonableness factors, it is clear that the
reasonable fee is no fee at all. After all,
where the only reasonable fee is no fee, an
award of fees would be unjust; conversely,
where a fee award would be unjust, the
reasonable fee is no fee at all.
Id. at 118. In other words, if this Court does require that all
prevailing parties be entitled to a fully compensatory award
of attorney’s fees, the Petitioner in Farrar would not have
been denied fees.
. se
Admittedly, federal fee-shifting statutes aim to ensure
effective access to the judicial process for persons with
meritorious federal claims. See Hensley, 461 U.S. at 429.
The fees to be awarded are not intended to be “windfalls” for
plaintiffs, however, and the district courts maintain the
discretion to determine what is reasonable based on the facts.
See Blanchard v. Bergeron, 489 U.S. 87, 96 (1989). The
application of the statutes is not to be “mechanistic,” but
rather based on district court factual determinations and
discretion. The district courts’ discretion in determining the
amount of the award is appropriate because of its “superior
understanding of the litigation” and the desirability of
avoiding appellate review of what are generally factual
determinations. Hensley, 461 U.S. at 437.
The district court in this case, with its superior
understanding of the litigation, determined that the fees
should be apportioned and that Turner’s error in untimely
filing his fee petition against the United States should not be
used to shift fee responsibility to the Board. The Board stood
with Turner throughout the litigation and fought the
intervenor alongside Turner. Had the United States not
become a party defendant, Turner would not have incurred
the vast majority of the fees he incurred after the November
6, 1998 filing of the Board’s request for declaratory judgment
and Turner’s motion for a temporary restraining order. In
fact, both Turner and the Board were prevailing parties in
this matter. ;
The D.C. Circuit reversed the lower court and held
the Board jointly and severally liable because it determined
that district courts should not have the discretion to apportion
fees if the result would be less than a full compensatory
award. It read a significant limitation on a district court’s
discretion to award fees under the typical federal fee-shifting
statute by mandating a mechanistic view of fee awards. The
-19-
decision of the court below flies in the face of the discretion
this Court has traditionally given district courts and applies a
mechanistic rule whereby district courts must focus solely on
the factor of whether an award is fully compensatory, thus
taking away their traditional ability to weigh the facts of a
case and providing a prescription for injustice.
In short, this Petition presents an important issue, the
resolution of which is of considerable consequence to many
other cases nationwide. it is necessary for the fairness of all
parties involved to ensure that district courts are able to
exercise their discretion in determining whether to apportion
attorney’s fees based on factors such as relative culpability
and the like, or to hold defendants jointly and severally liable
under federal fee-shifting statutes rather than to apply a
simple mechanistic rule. The D.C. Circuit’s decision
improperly takes discretion away from the district courts in
determining attorney’s fees, despite the federal fee-shifting
Statutory language, this Court’s prior holdings, and the
holdings of other Circuits.
a.
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorar. should be granted.
Respectfully submitted.
ROBERT J. SPAGNOLETTI
Attorney General
EDWARD E. SCHWAB
Deputy Attorney General
DONNA M. MURASKY
Senior Litigation Counsel
Counsel of Recor..
OFFICE OF THE ATTORNEY
GENERAL FOR THE DISTRICT
OF COLUMBIA
441 4" Street, N.W.
6" Floor South
Washington, D.C. 20001
(202) 724-5667
TIMOTHY K. ARMSTRONG
STACEY H. KING
HOWREY SIMON ARNOLD &
WHITE
1299 Pennsylvania Avenue, NW
Washington, D.C. 20004
(202) 783-0800
Attorneys for Petitioner
District of Columbia Board of
Elections and Ethics
JUNE 2004
et
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-7030
WAYNE TURNER, ET AL.
V.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS
AND ETHICS
Appeal from the United States District Court
For the District of Columbia
(No. 98cv02634)
Turner v. D.C. Board of Elections & Ethics,
170 F. Supp. 2d 1 (D.D.C. 2001)
Before: GINSBURG, ROGERS and TATEL,
Circuit Judges.
(Decided January 23, 2004)
MEMORANDUM OPINION OF THE COURT
ROGERS, Circuit Judge.
This appeal requires the court to determine what is a
fully compensatory award under the Civil Rights Attorney’s
Fees Awards Act, 42 U.S.C. § 1988, where the original
defendant, aligning with the plaintiffs’ constitutional
challenge to a federal statute under 42 U.S.C. § 1983, leaves
defense of the statute to the United States, as defendant-
intervenor. The district cvurt apportioned the requested
2a
§ 1988 attorney’s fees and expenses between the original
defendant and the immune defendant based on considerations
of comparative fault. In doing so, the district court approved
a partial award to the prevailing plaintiffs only for the time
prior to the original defendant’s alignment with the plaintiffs’
position, and no fees and expenses for the merits litigation
thereafter. The district court also limited the award for the
litigation to collect fees and expenses to the plaintiffs’ efforts
to collect under § 1988, excluding fees and expenses arising
from efforts to collect from the immune defendant under the
Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). On
appeal, the prevailing plaintiffs contend that they were
entitled to a “fully compensatory fee,” Hensley v. Eckerhart,
461 U.S. 424, 435, 76 L. Ed. 2d 40, 103 S. Ct. 1933 (1983),
in light of their complete success on the merits,
notwithstanding the original defendant’s failure to oppose
their lawsuit. We agree. The original defendant continued to
deny the plaintiffs the only relief they sought throughout the
litigation, and was jointly and severally liable with the
United States for fees and expenses on the nonfractionable
claims. Accordingly, we hold that the district court erred as a
matter of law in apportioning fees and expenses on
nonfractionable claims in the § 1983 litigation, and we vacate
the. judgment and remand the case to the district court to
enter a fully compensatory award to the prevailing plaintiffs.
I.
A brief recitation of the underlying lawsuit giving rise
to the request for attorney’s fees is necessary. See Turner v.
D.C. Bd. of Elections & Ethics, 77 F. Supp. 2d 25 (D.D.C.
1999). When District of Columbia voters went to the polls on
November 3, 1998, the ballot included Initiative 59, the
Medical Marijuana Initiative, which sought voters’ approval
to legalize medical uses of marijuana for the chronically ill.
Id. at 27. Two weeks before the election, on October 21,
a
3a
1998, Congress enacted and the President signed the Barr
Amendment to the District of Columbia Appropriations Act
for Fiscal Year 1999. See Pub. L. No. 105-277, § 171, 112
Stat. 2681-150 (1998). The Barr Amendment prohibited use
of the appropriated funds to “conduct any ballot initiative
which seeks to legalize or otherwise reduce penalties
associated with” a controlled substance. Jd. The ballots for
the November 3 election had been printed before enactment
of the Barr Amendment, however, and District of Columbia
voters voted on Initiative 59. Turner, 77 F. Supp. 2d at 27.
When the Board of Elections and Ethics refused, in
light of the Barr Amendment, to release and certify the
results of the vote on Initiative 59, five District of Columbia
voters, including Wayne Turner, the official sponsor of
Initiative 59 (hereinafter, together, “Turner’’), sued the Board
under 42 U.S.C. § 1983, seeking declaratory and injunctive
relief. The complaint, filed October 30, 1998, and Turner’s
subsequent briefing alleged in the alternative that first, the
Barr Amendment only limited the Board’s capability to act
until November 3, Election Day, and, therefore, the Board
was required under D.C. Code Ann. § 1-1306 (1981) (now
codified at D.C. Code Ann. § 1-1001.05 (2001)) to certify the
results thereafter, see Turner, 77 F. Supp. 2d at 27, and
second, to the extent the Barr Amendment prohibited the
Board from performing its duty, the Amendment violated the
First and Fifth Amendments of the United States
Constitution. Three days after the election, Turner filed a
motion for a temporary restraining order (“TRO”) and a
preliminary injunction. The same day, November 6, the
Board filed a motion for a declaratory judgment supporting
Turner’s argument that the Barr Amendment was
unconstitutional; the Board did not joi the statutory
argument.
4a
The United States, having been notified of the lawsuit
pursuant to 28 U S.C. § 2403(a), filed an opposition to the
TRO on November 9, pending a decision by the Solicitor
General as to whether the United States would seek to
intervene. The district court denied the TRO on November 10
and consolidated the preliminary injunction with the merits.
The United States’ unopposed motion to intervene, filed
November 23, was granted on November 30. Following a
hearing on the parties’ cross-motions for summary judgment,
the district court, on September 17, 1999, granted summary
judgment to Turner, adopting his statutory argument in light
of the principle of constitutional avoidance, for otherwise, the
court opined, the Barr Amendment would have violated
Turner’s First Amendment rights. Turner, 77 F. Supp. 2d at
35. Neither the United States nor the Board appealed. Shortly
thereafter, the Board counted the ballots and certified the
results, which indicated that Initiative 59 had passed by 69%
of the vote. See District of Columbia Board of Elections and
Ethics, November 3, 1998 General Election, Election
Results, Initiative Measure # 59 (votes counted Sept. 20,
2003), at http://www.dcboee.org/information/elec_1998/
ini59_98.htm.
On March 31, 2000, after fee negotiations had proved
unsuccessful, see Local Rule 215(b), Turner filed a motion
for attorney’s fees and expenses of approximately $ 134,000.
Asserting that the Board and the United States were jointly
and severally liable, Turner sought fees from the United
States under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d)(1)(A), and, in light of EAJA’s statutory cap
on hourly rates, see id. § 2412(d)(2)(A), also sought fees
from the Board under 42 U.S.C. § 1988 for any amount
exceeding the award under EAJA. A magistrate judge
dismissed the EAJA request as untimely, see 28 U.S.C. §
2412(d)(1)(B), a determination to which Turner did not
object, but permitted Turner to amend his motion to request
——
Sa
an award of all of his attorney’s fees and expenses from the
Board. Turner v. District of Columbia Bd. of Elections &
Ethics, 183 F. Supp. 2d 22, 30-31 (D.D.C. 2001).
Addressing Turner’s § 1988 request, the magistrate
judge, see Fed. R. Civ. P. 54(d)(2)(D) & 72(b), found that
Turner was a prevailing party and did not question the
reasonableness of his counsel’s hours and rates. The
magistrate rejected, however, the view that the Board and the
United States could be jointly and severally liable for
Turner’s attorney’s fees and therefore apportioned fees and
expenses based on comparative fault. Turner vy. District of
Coiumbia Bd. of Elections & Ethics, 170 F. Supp. 2d 1, 4-7
(D.D.C. 2001). The magistrate concluded that Turner was
entitled to recover only $ 2,616 in fees for the period between
October 30, 1998, when Turner filed his complaint, and
November 6, 1998, when the Board filed its motion for a
declaratory judgment (“pre-alignment period”). Jd. at 8. For
the pre-alignment period, the magistrate apportioned 90% of
the culpability for the merits litigation to the United States
inasmuch as the Board’s decision to enforce the Barr
Amendment was, in view of the District of Columbia’s
unique relationship with Congress, understandable. /d. at 7,
8. For the post-November 6 merits litigation (“post-
alignment period”), the magistrate apportioned 100% of the
culpability for that litigation to the United States. The
magistrate reasoned that it was unfair to force the Board to
pay attorney’s fees and expenses for this period when Turner
and the Board sought the same relief and Turner’s counsel’s
work was directed against arguments presented only by the
United States. id. at 6. F inally, the magistrate awarded
Turner fees of only $ 1,497 incurred in litigating the request
for fees (“fees-for-fees”). Id. at 9. Because Turner had not
allocated his counsel’s time between the EAJA and § 1988
claims, the magistrate used the number of pages in Turner’s
fee motions directed at each claim as a proxy for allocating
6a
the fees-for-fees to the United States and to the Board,
finding that only 46% of Turner’s counsel’s fees work could
be ascribed to the Board. /d. The magistrate again, however,
in light of his culpability finding, awarded Turner only 10%
of the fees-for-fees incurred against the Board. /d. at 9.
Turner, but not the Board, filed objections to the magistrate’s
partial award.
On de novo review, see Fed. R. Civ. P. 54(d)(2)(D) &
72(b), 28 U.S.C. § 636(b)(1), the district court adopted the
magistrate’s comparative-fault apportionment but increased
Turner’s partial award against the Board to $ 39,815. The
district court concluded, in recognition of § 1988’s purpose
of encouraging private attorneys general to bring meritorious
lawsuits to vindicate citizens’ rights, that the reasonable
amount of fees should be reduced only minimally. The
district court awarded Turner 87% of his fees request ($
24,000) for the pre-alignment period plus expenses of $ 569.
The district court denied Turner any award for the post-
alignment period for the remainder of the merits litigation.
For the fees-for-fees period, the district court awarded Turner
46% of his request, or $ 15,246, based on the pages proxy,
absent a complete allocation by Turner of time between the §
1988 and EAJA claims, but with no reduction for
comparative fault. Upon reconsideration, the district court
awarded Turner $ 21,714 for fees-for-fees work following
the magistrate’s decision, bringing the total partial award to
$ 61,529.
Il.
On appeal, Turner contends that the district court
erred as a matter of law in awarding only a portion of his
request for attorney’s fees and expenses under § 1988 based
on apportioning most of the fees to an immune defendant.
Because the Board did not object either to his status as a
Ee —
Ta
prevailing party or to the reasonableness of his counsel’s
rates or hours, and did not cross-appeal on these issues,
Turner maintains, and we agree, that there are no disputed
issues of fact before this court. Thus, the only question before
the court is for which parts of Turner’s § 1983 lawsuit the
Board may properly be held accountable for attorney’s fees
and expenses, and whether joint and several liability applies.
Longstanding precedents establish that plaintiffs who
have achieved excellent results in civil rights litigation
should normally receive a fully compensatory attorney’s fee.
Section 1988 provides in pertinent part that in any suit
pursuant to 42 U.S.C. § 1983, “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). The plaintiff, however, bears the burden of
establishing both entitlement to an award of attorney’s fees
as well as the amount properly due. Hensley,-461 U.S. at 437;
Covington v. District of Columbia, 313 U.S. App. D.C. 16,
57 F.3d 1101, 1107 (D.C. Cir. 1995). The Supreme Court has
described § 1988’s purpose as safeguarding “effective access
to the judicial process” for persons with civil rights
grievances such that a prevailing plaintiff “should ordinarily
recover an attorney’s fee unless special circumstances would
render such an award unjust.” Hensley, 461 U.S. at 429
(quoting H. R. Rep. No. 94-1558, at 1 (1976); S. Rep. No.
94-1011, at 4 (1976)). In order to attract competent counsel
to serve as private attorneys general on behalf of plaintiffs,
who are “the chosen instrument of Congress to vindicate a
policy that Congress considered of the highest priority,”
Miller v. Staats, 227 U.S. App. D.C. 299, 706 F.2d 336, 340
(D.C. Cir. 1983) (citations omitted), it has long been
established that “in computing the [ § 1988] fee, counsel for
prevailing parties should be paid, as is traditional with
attorneys compensated by a fee-paying client, ‘for all time
reasonably expended on a matter.’ “ Hensley, 461 U.S. at 430
8a
n.4 (quoting S. Rep. No. 94-1011, at 6 (1976)). Thus, § 1988
“grants the successful civil mghts plaintiff a ‘fully
compensatory fee.’ “ Missouri v. Jenkins, 491 U.S. 274, 286,
105 L. Ed. 2d 229, 109 S. Ct. 2463 (1989) (quoting Hensley,
461 U.S. at 435); see also Covington, 57 F.3d at 1109.
Although “a request ‘or attorney’s fees should not
result in a second major litigation,” and “the district court has
discretion in determining the amount of a fee award” because
of its “superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what
essentially are factual matters,” Hensley, 461 U.S. at 437
(emphasis added), “it is now axiomatic that ... the discretion
of a district court in deciding whether to award such fees to a
prevailing party is narrowly limited.” Consumers Union of
U.S., Inc. v. Virginia State Bar, 688 F.2d 218, 222 (4th Cir.
1982) (citing Bonnes v. Long, $99 F.2d 1316 (4th Cir. 1979))
(emphasis added); accord Miller, 706 F.2d at 340. Where, as
here, the issues involved are not questions of fact but of law
regarding the appropriateness of apportionment, (*:s court’s
review is de novo. See Jacobs v. Schiffer, 340 U.S. App. D.C.
221, 204 F.3d 259, 264 (D.C. Cir. 2000).
This court normally would defer to a thoughtful
“rationale of the district court so long as it achieved a result
that was fair to the parties, see Williams v. First Gov’t Mortg.
& Investors Corp., 343 U.S. App. D.C. 222, 225 F.3d 738,
747 (D.C. Cir. 2000), but we are constrained to take a closer
look at this § 1988 fees appeal in light of the novel
application of a comparative fault theory based on tort law,
see Turner, 170 F. Supp. 2d at 5-6 (citing Restatement
(Second) of Torts § 192). Here, the district court, in adopting
the magistrate’s analysis, see id. at 6-9, applied its view of
comparative fault in the sense that the Barr Amendment
placed the Board in a difficult position of either having to
enforce the Amendment or risk defying Congress to which it
9a
is ultimately responsible, see U.S. Const. art. i, & 8, of. 17,
and which controls its appropriations, see D.C. Code § |-
204.46. The district court concluded that a reasonable fee
must take into account the fact that the United States was
primarily at fault. In developing this comparative fault
theory, the magistrate and the district court relied on
Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 960 (Ist Cir.
1984), in which the First Circuit suggested relevant factors
for allocating fees among defendants. While a source of
guidance for jointly and severally liable defendants,
Grendel’s Den provides no support for apportioning § 1988
fees liability so as to deny the prevailing plaintiff a fully
compensatory fee on a common set of claims against the
defendants. /d. Indeed, the First Circuit, in citing its own
authority, among others, recognized that it was not unjust to
assess fees against a governmental entity stuck with
enforcing a law ultimately found to be unconstitutional on its
face even where it did not enact the law and where some
other entity may be more culpable or causally responsible. Jd.
(citing Venuti v. Riordan, 702 F.2d 6, 8 (1st Cir. 1983)).
Turner contends that the district court abused its
discretion, see Jacobs, 204 F.3d at 264; Nat’l Black Police
Assn v. D.C. Bd. of Elections & Ethics, 335 U.S. App. D.C.
17, 168 F.3d 525, 529 (D.C. Cir. 1999), by failing to award
him a “fully compensatory award” where there are no
“special circumstances [that] would render such an award
unjust.” Hensley, 461 U.S. at 435, 429. Specifically, Turner
maintains that for the pre-alignment period the district court
erred as a matter of law in denying his full fees even though
the Board was the only defendant. For the post-alignment
period, Turner contends that the Board, notwithstanding its
alignment with his constitutional challenge, continued to be
his adversary throughout the merits litigation because
although it could have settled in light of its position that the
Barr Amendmert was unconstitut‘onal, it continued to
10a
enforce the Amendment, denying Turner his sought relief.
Moreover, while acknowledging that for the fees-for-fees
period he seeks to recover against the Board only the fees
that are attributable to his efforts under § 1988 and not for
time devoted to EAJA collection from the United States,
Turner contends that there ‘s no authority to apportion § 1988
fees and expenses when the result is, as here, to deny a
successful plaintiff any fees for his attorneys’ work on the
merits, other than a fractional fee for the first week after the
complaint was filed. By so doing, Turner maintains the
district court’s fee award undermines “the premium that the
Civil Rights Act places on litigants as private attorneys
general,” Boos v. Barry, 704 F. Supp. 5, 9 (D.D.C. 1989), by
enabling ordinary citizens to obtain counsel to litigate
meritorious civil rights cases.
Although the Board attempts for the first time on
appeal to contend that it, too, was a prevailing party, that
argument is not properly before the court. See United States
v. Hylton, 352 U.S. App. D.C. 332, 294 F.3d 130, 135 (D.C.
Cir. 2002). There is no basis to conclude that the Board was
not “the party legally responsible for relief on the merits,”
Kentucky v. Graham, 473 U.S. 159, 164, 87 L. Ed. 2d 114,
105 S. Ct. 3099 (1985), as only it, and not the United States,
could certify the votes on Initiative 59. Results, not litigating
positions, are determinative of prevailing party status.
Hensley, 461 U.S. at 435. Turner incurred and continued to
incur attorney’s fees and expenses because the Board refused
to certify the election results. See Nationwide Bldg.
Maintenance, Inc. v. Sampson, 182 U.S. App. D.C. 83, 559
F.2d 704, 710 (D.C. Cir. 1977) (citing Communist Party of
U.S. v. Department of Justice, No. 75-1770, slip op. at 3
(D.D.C. Mar. 23, 1976)); see also Cuneo v. Rumsfeld, 180
U.S. App. D.C. 184, 553 F.2d 1360, 1365 (D.C. Cir. 1977),
overruled on other grounds by Burka v. United States Dept.
of Health and Human Services, 330 U.S. App. D.C. 59, 142
Ila
F.3d 1286, 1288 (D.C. Cir. 1998). Hence, the Board’s claim
of “alignment” with Turner in challenging the Barr
Amendment fails to show exceptional circumstances to
excuse its failure to aise this argument in the district court.
See Hylton, 294 F.3d at 135.
Our analysis of Turner’s § 1988 request proceeds on
the basis of four well-settled propositions of law on which
Turner relies. First, because an award of attorney’s fees
under § 1988 “is not meant as a ‘punishment’ for ‘bad’
defendants who resist plaintiffs’ claims in bad faith[,] [but] is
meant to compensate civil righis attorneys who bring civil
rights cases and win them,” Coalition for Basic Human
Needs v. King, 691 F.2d 597, 602 (Ist Cir. 1982), the fact
that it was not the “fault” of the Board of Elections that the
Barr Amendment was enacted oy Congress and that Turner
had to litigate to get the Board to count the votes on Initiative
59 is not a “special circumstance” warranting denial of a
fully compensatory fee. Second, it is irrelevant for purposes
of § 1988 that Congress, and not the Council of the District
of Columbia, enacted the Barr Amendment, because under 42
U.S.C. § 1983 the Amendment is treated as a District of
Columbia law. Third, in light of Supreme Court of Virginia v.
Consumers Union of the United States, Inc., 446 U.S. 719,
739, 64 L. Ed. 2d 641, 100 S. Ct. 1967 (1980), and King, 691
F.2d at 602, because the Board continued to enforce the Barr —
Amendment throughout Turner’s § 1983 litigation, it is
irrelevant for purposes of § 1988 that in court the Board
Supported Turner’s constitutional challenge to the Barr
Amendment. Fourth, because the Board’s liability for § 1988
fees is not derivative of the United States’, it is irrelevant that
Turner did not timely seek attorney’s fees under EAJA, for
the immunity of one defendant does not reduce the
liability of a non-immune co-defendant. See Graham, 473
U.S. at 164-65; Supreme Court of Va., 446 U.S. at 739.
12a
To ensure that a private attorney general is fully
compensated, “it is frequently appropriate to hold all
defendants jointly and severally liable for attorneys’ fees in
cases in which two or more defendants actively participated
in a constitutional violation.” Herbst v. Ryan, 90 F.3d 1300,
1305 (7th Cir. 1996) (citing Koster v. Perales, 903 F.2d 131,
138 (2d Cir. 1990)). Moreover, in order to serve the remedial
purposes of the Civil Rights Act, “a number of courts have
upheld the imposition of joint and several liability for a fee
award where there existed a question as to whether the fee
would be collectible from one of the defendants.” 90 F.3d at
1306 n.13; see also Carpenters Health & Welfare Fund v.
Kenneth R. Ambrose, Inc., 727 F.2d 279, 285-86 (3d Cir.
1983); Riddell v. Nat’! Democratic Party, 712 F.2d 165, 168-
169 (5th Cir. 1983). Thus, in this circuit, a plaintiffs fully
compensatory fee for claims “centered on a set of common
issues” against two or more jointly responsible defendants
should be assessed jointly and severally. Action on Smoking
& Health v. Civil Aeronautics Bd., 233 U.S. App. D.C. 79,
724 F.2d 211, 216 (D.C. Cir. 1984) (hereinafter “ASH’’). On
the other hand, if claims are not attributable to all defendants
and are not “centered on a set of common issues,” i.e., claims
that are “truly fractionable,” id., fees should be apportioned,
“in order to ensure that a defendant is not liable for a fee
award greater than the actual fees incurred against that
defendant,” Jones v. Espy, 10 F.3d 690, 691 (9th Cir. 1993).
The Supreme Court has acknowledged that “fee
aw2zus against enforcement officials are run-of-the mill
occurrences.” Supreme Court of Va., 446 U.S. at 739. “Mere”
enforcers of unconstitutional laws may be held liable for
attorneys’ fees even if their involvement in the litigation has
been minor or they have argued that their enforcement
actions are improper and have lobbied for the underlying law
to be changed. See id.; cf: Carhart v. Stenberg, 192 F.3d
1142, 1152 (8th Cir. 1999), aff'd, 530 U.S. 914, 147 L. Ed.
|
yy
13a
2d 743, 120 S. Ct. 2597 (2000). Congress has determined
that the greater wrong would be to leave unpaid the
attorney’s fees and expenses of a successful § 1983 plaintiff
who has undertaken significant risks and expenses to
vindicate constitutional rights. See Carhart, 192 F.3d at
1152. As this court observed, “the determinative factor must
be the role of plaintiffs’ lawsuit, not the motivations of the
defendant.” Miller, 706 F.2d at 343.
Section 1988 does not permit a court to inquire into
defendants’ comparative fault where to do so obstructs
Congress’ purpose of compensating successful private
attorneys general. King, 691 F.2d at 602. Even accepting the
district court’s view that the Board’s blameworthiness was
relatively slight compared to that of the United States, the
Board’s § 1988 liability may not, to the prevailing plaintiffs’
detriment, be reduced on the nonfractionable claims against
the defendants. State actors “may have had good-faith
reasons for their acts, but that is no reason to deny the
[plaintiff] attorney’s fees.” Jd. The district court’s
reservations about holding District of Columbia officials
fully responsible for their enforcement of the Barr
Amendment are therefore misplaced. The unique relationship
between Congress and the District of Columbia under the
Constitution simply means that there will be occasions when
the District of Columbia government must pay attorney’s
fees for successful § 1983 lawsuits chalienging laws that the
District Government did not enact, for any Act of Congress
that is solely applicable to the District of Columbia is a law
of the District of Columbia for § 1983 purposes. Consistent
with the court’s duty to ensure that a successful § 1983
plaintiff is awarded a fully compensatory fee, then, § 1988
fee awards based on a nonfractionable claim may not be
apportioned between an immune “losing party,” see Graham,
473 U.S. at 164, who cannot be made to pay, and a non-
l4a
immune losing party that is jointly and severally liable for
the former’s share of an attorney’s fee award.
As previously explained, joint and several liability
exists for all defendants on the non-fractionable claims, see
Herbst, 90 F.3d at 1305; it is only when there are fractionable
parts of a lawsuit not fairly attributable to other parties that
liability for attorney’s fees and expenses may be apportioned
exclusively to the party who caused the plaintiff to incur
those costs, see Action on Smoking & Health v. Civil
Aeronautics Bd., 724 F.2d 211, 216. Turner’s § 1983 lawsuit
to obtain a preliminary injunction and declaratory judgment
against the Board and, once it intervened, against the United
States centered on a common set of issues: namely, the
Board’s refusal to count and certify the votes on Initiative 59.
While the United States’ intervention as a defendant affected
the course of the proceedings, there was not a separate claim
against the United States, compare Southeast Legal Defense
Group v. Adams, 657 F.2d 1118, 1125 (9th Cir. 1981); Jones,
10 F.3d at 692 n.2, as is clear from the fact that if the United
States had not intervened, Turner would have been required
to litigate the merits of his § 1983 claim so long as the Board
continued to enforce the Barr Amendment. The magistrate’s
finding, adopted by the district court, stated there is nothing
to indicate that, but for the United States’ intervention, the
Board would have unilaterally stopped enforcing the
Amendment. See Turner, 170 F. Supp. 2d at 7. Because the
United States enjoys sovereign immunity over the share of
Turner’s fees it otherwise would bear, the Board, as a jointly
and severally liable losing party, must pay all attorney’s fees
associated with the non-fractionable claim, here consisting of
the entire litigation from the date Turner filed his complaint
to the date he obtained summary judgment.
By contrast, as Turner acknowledges, his fees-for-
fees litigation is fractionable. Because it involves distinct
lSa
claims, i.e., different statutes with different standards of
proof, Turner correctly seeks only to recover fees-for-fees
from the Board based on his § 1988 claim against the Board
and not based on his EAJA claim against the United States.
Compare 42 U.S.C. § 1988(b) with 28 USC. §
2412(d)(1)(A). For the fees-for-fees litigation, Turner’s
counsel engaged in separate research on each statute and
generated a separate argument about how each party’s role in
the suit rendered it liable to a prevailing party’s claim for
attorney’s fees. See Turner, 170 F. Supp. 2d at 9. His
counsel’s hours therefore can be “easily compartmentalized,”
ASH, 724 F.2d at 216, preventing Turner from recovering
fees-for-fees against the Board for his EAJA claim.
We therefore hold that the district court (and the
magistrate judge) erred as a matter of law by using
considerations of comparative fault in apportioning Turner’s
§ 1988 request for attorney’s fees and expenses on a non-
fractionable claim between the non-immune Board and the
immune United States. Because there is no issue regarding
the reasonableness of his counsel’s hours and rates, Turner
was entitled to recover 100% of the fees and expenses
incurred for the merits litigation. In the pre-alignment period,
the United States was not a party and hence there was no
basis for limiting Turner’s recovery to 87%. In the post-
alignment period, the Board continued to enforce the Barr
Amendment, denying Turner the sole relief that he sought in
his litigation; the Board neither certified the results nor
settled the case. By contrast, Turner’s claims for fees-for-fees
under § 1988 and EAJA are fractionable, and the district
court, using motions pages as a proxy for any other
allocation, properly apportioned the fees between the Board
and the United States. Accordingly, we vacate so much of the
order as awarded Turner only a partial award of his
attorney’s fees and expenses under § 1988 for the § 1983
l6a
merits litigation, and remand the case to the district court to
enter a fully compensatory award.
17a
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 03-7030
WAYNE TURNER, ET AL.,
LARRY BRUNI, M.D.,
V.
DISTRICT OF COLUMBIA
BOARD OF ELECTIONS AND ETHICS
Before: GINSBURG, EDWARDS, SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL,
GARLAND, and ROBERTS,
Circuit Judges.
(Filed March 10, 2004)
ORDER
Upon consideration of appellee District of Columbia
Board of Elections and Ethic’s petition for rehearing en banc,
and the absence of a request by any member of the court for a
vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
/s/ Michael C. McGrail
Michael C. McGrail
Deputy Clerk
18a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 98-2634
WAYNE TURNER, ET AL.
V.
D.C. BOARD OF ELECTIONS AND ETHICS
Before: ROBERTS,
United States District Judge.
(Filed October 8, 2003)
MEMORANDUM OPINION AND ORDER
ROBERTS, United States District Judge.
The United States Magistrate Judge to whom
plaintiffs’ request for attorneys’ fees was referred awarded
plaintiffs fees in the total amount of $4,113 and plaintiffs
filed objections to the award. Following de novo review of
the fee request, plaintiffs are awarded attorneys’ fees in the
total amount of $39,815.
BACKGROUND
The background of the underlying dispute is set forth
fully in the Memorandum Opinion issued September 17,
1999 and in the Memorandum Opinion signed by the
Magistrate Judge on October 23, 2001. Briefly, ballots in the
District of Columbia for the November 1998 election
oo a
19a
included an initiative that, if adopted by the voters, would
allow certain individuals to obtain marijuana for medicinal
purposes. After the ballots were printed but before the
election took place, Congress passed the Barr Amendment
which prohibited the District of Columbia from using funds
to conduct a ballot initiative that sought to legalize the use of
any-controlled substance, including marijuana.
On October 30, 1998, plaintiffs filed this lawsuit
challenging the Barr Amendment under, inter alia, 42 U.S.C.
§ 1983 (2000). The District of Columbia Board of Elections
and Ethics (the “Board”) was the only defendant named by
plaintiffs in their lawsuit.
On November 6, 1998, the Board filed a motion
asking the Court to declare the Barr Amendment in violation
of the First Amendment, thereby aligning itself with
plaintiffs. On November 9, 1998, plaintiffs sought a
temporary restraining order. ‘That same day, the united States
opposed plaintiffs’ motion and shortly thereafter intervened
as an adverse party to defend the constitutionality of the Barr
Amendment.
Plaintiffs prevailed on their challenge to the Barr
Amendment. Their request for fees against the United States
under the Equal Access to Justice Act (“EAJA”) was denied
as untimely. Their request for fees against the Board under
42 U.S.C. § 1988 was referred to a Magistrate Judge who
awarded $4,113.
DISCUSSION
The Magistrate Judge’s fee award is reviewed de
novo. 28 U.S.C. § 636(b)(1).
20a
The prevailing party in an action filed pursuant to 42
U.S.C. § 1983 may recover a reasonable attorneys’ fee. 42
U.S.C. § 1988. The party requesting fees has the burden of
establishing entitlement to fees and the proper amount of
fees. See Covington v. District of Columbia, 57 F.3d 1101,
1107 (D.C. Cir. 1995). The Magistrate Judge determined
that plaintiffs were entitled to recover attorneys’ fees under §
1988 and no objections to that determination have been filed.
Plaintiffs qualify as prevailing parties on their § 1983 claim.
The remaining dispute is this case involves the
amount of plaintiffs’ fees which should be assessed against
the Board. Plaintiffs insist that the Board should pay the full
amount of plaintiffs’s fees incurred in the case. The Board
contends that the fees should be apportioned and that it
should pay a small percentage of the total fees requested.
The Magistrate Judge agreed with the Board.
For the reasons discussed and under the cases cited by
the Magistrate Judge in his Memorandum Opinion,
apportionment is appropriate in this case. The court deciding
a fee application should “make every effort to achieve the
most fair and sensible solution that is possible.” See
Grendel’s Den Inc. v. Larkin, 749 F.2d 945, 960 (1 Cir.
1984). Plaintiffs argue that they are entitled under § 1988 to
recover a fully compensatory fee. Their ability to recover a
fully compensatory fee, however, is impeded by their failure
to have filed their request for fees from the United States
under the EAJA in a timely manner. The Board should not
be required to pay fees incurred during litigation on the
merits after it requested a ruling from the Court that the Barr
Amendment was unconstitutional. After that date - -
November 6, 1998 - - the Board was aligned with plaintiffs
on the merits and the plaintiffs’ only adversary was the
United States which intervened to defend the Barr
Amendment.
2la
The record shows that attorneys Graham Boyd, Art
Spitzer and Aaron O’Toole spent 69.9 hours, 13.6 hours, and
24 hours respectively, working on this case through
November 6, 1998. Using the most recent Laffey matrix, !
Boyd’s hours are paid at the rate of $265 per hour, Spitzer’s
hours are paid at the rate of $370 per hour, and O’Toole’s
hours are paid at the rate of $175 per hour. Plaintiffs. then,
incurred attorneys’ fees of $27,755.50 plus $569 in expenses
through November 6, 1998.
The amount of attorneys’ fees to be awarded in a
given case, however, is that which is reasonable. 42 U.S.C.
§ 1988(b). Indeed, ‘reasonableness’ is the overarching
standard by which a fee award is to be measured, and it is to
be determined by a district court ‘in light of all the
circumstances’ of a case.” McKenzie v. Kennickell, 875
F.2d 330, 333 (D.C. Cir. 1989) (citing Blanchard v.
Bergeron, 489 U.S. 87, 96 (1989)). The United States in this
case was solely responsible for enacting the challenged
legislation and was significantly responsible for causing the
election results to be suppressed. As a result, it is appropriate
to reduce the amount of fees assessed against the Board to
arrive at a reasonable fee for which it should be responsible.
In recognition of § 1988s purpose of encouraging private
attorneys general to bring meritorious lawsuits to vindicate
citizens’ rights, however, the amount by which the fee is
reduced should be minimal. Based on the foregoing, a
reasonable fee to be assessed against the Board in this case is
$24,000, plus expenses in the amount of $569.
| Laffey v, Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983). Because
compensation received many years after the work was performed “is not
equivalent to the same dollar amount received reasonably promptly as the legal
services are performed, . . . an appropriate adjustment for delay in payment - -
whether by the application of current rather than historic hourly rates or otherwise
- - is within the contemplation of (§ 1988].” Missouri v. Jenkins, 491 U.S. 274,
283-84 (1989).
22a
Plaintiffs are also entitled to recover the fees incurred
in connection with their request for fees from the Board
under § 1988. Plaintiffs claimed $33,144.50 in attorneys’
fees for work devoted to the request for fees from the Board
under § 1988 and the request for fees from the United States
under the EAJA. However, before the Magistrate Judge,
plaintiffs failed to fully allocate time between the § 1988 and
EAJA claims. The Board should not be billed for plaintiffs’
work on fee arguments that were applicabie only to the
United States and that did not prevail. The Magistrate Judge
found that 46% of the substantive portions of plaintiffs’
briefs addressed the § 1988 claim, and he apportioned these
fees guided by that percentage. That basic principle was not
unreasonable. Since plaintiffs have still provided no
complete allocation of time between the two claims, they will
be awarded 46% of the fees sought, or $15,246.
CONCLUSION
Plaintiffs are entitled to recover from the Board
$24,569 for fees and expenses incurred on or before
November 6, 1998, plus $15,246 for fees incurred in
connection with their fee request. Accordingly, it is hereby
ORDERED that defendant District of Columbia
Board of Elections and Ethics pay plaintiffs $39,815.
SIGNED this 8" Day of January, 2003.
/s/ Richard W. Roberts
RICHARD W. ROBERTS
United States District Judge
23a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 98-2634
WAYNE TURNER, ET AL.
V.
D.C. BOARD OF ELECTIONS AND ETHICS
Before: ROBERTS,
United States Disrict Judge.
(Filed February 14, 2003)
ORDER
ROBERTS, United States District Judge.
Plaintiffs filed a motion for reconsideration of the fee
award entered January 8, 2003. Specifically, plaintiffs seek
additional fees for the work performed on their fee request
after the decision by the United Sates Magistrate Judge.
Defendant has neither filed any opposition to plaintiffs”
motion nor requested an extension of time in which file its
response. Because plaintiffs are entitled to recover the fees
incurred after August 20, 2001 in connection with the fee
request, and because the current Laffey matrix rates are
appropriate, it is hereby
ORDERED that plaintiffs’ motion for reconsideration
of fee calculations be, and hereby is, GRANTED. The fee
award entered January 8, 2003 is vacated. It is further
24a
ORDERED that attorneys’ fees and expenses in the
total amount of $61,529 be, and hereby are, awarded in favor
of plaintiffs and against the District of Columbia Board of
Elections and Ethics.
SIGNED this 14" day of February, 2003.
/s/ Richard W. Roberts
RICHARD W. ROBERTS
United States District Judge
25a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 98-2634
WAYNE TURNER, ET AL.
V.
D.C. BOARD OF ELECTIONS AND ETHICS
Before: FACCIOLA,
United States Magistrate Judge.
(Filed October 23, 2001)
MEMORANDUM OPINION
FACCIOLA, United States Magistrate Judge.
This matter is before me for resolution of plaintiffs’
Motion for Attorneys’ Fees and Expenses against defendant
District of Columbia Board of Elections and Ethics (“the
Board”) and the intervenor and defendant, the United States.
My Memorandum Opinion and Order of July 24, 2001,
denied plaintiffs’ motion with respect to the United States
under the Equal Access to Justice Act, 28 U.S.C. A.§
2412(d)(1)(A)(1994)(“EAJA”), and I now address the
Board’s liability under the Civil Rights Attorney’s Fees
Awards Act of 1976, 42 U.S.C.A. § 1988 (1994).
BACKGROUND
The underlying facts of this dispute have been
detailed in Judge Roberts’ Order of September 17, 1999.
26a
Turner v. District of Columbia Bd. of Elections and Ethics,
77 F.Supp.2d 25 (D.D.C. 1999). The Board placed on the
ballot for the November, 1998, election an initiative that
would afford seriously ili individuals the right to obtain
marijuana without violating the criminal provisions of the
D.C. Code. On October 21, 1998, however, Congress passed
what has become known in this lawsuit as the Barr
Amendment (after its sponsor), which prohibited the use of
funds contained in the District of Columbia
Appropriations Act to conduct any ballot initiative that
sought to legalize the use of a controlled substance,
including, of course, marijuana.
The billing entries submitted by plaintiffs’ counsel
indicate that on the very day the Barr Amendment was
enacted, lawyers for the American Civil Liberties Union
(“ACLU”) began to formulate a legal challenge to the
Amendment that they would ultimately bring on behalf of
five registered voters on October 30, 1998. Plaintiffs
named the Board as the only defendant.
Because the ballots had already been printed when
the Barr amendment was enacted, District of Columbia
voters voted on the initiative on election day, November
3, 1998. On that day the Board issued a press release
explaining that it would not release the voting results of
the initiative for fear of violating the Barr Amendment.
Plaintiffs’ Motion for Attorney’s Fees and Expenses,
Exhibit E.
On November 6, 1998, however, the Board filed a
Motion of Defendant for Expedited Review and
Declaratory Judgment, in which the Board asked this
Court to declare that the Barr Amendment violated the
“First Amendment rights of the voters of the District of
Columbia.” Id. at 1. The Board sought an order
27a
authorizing it to announce and certify the results of the
vote on ine marijuana initiative. On November 9, 1998,
the United States asked that the application plaintiffs had
filed for a temporary restraining order be denied. On
November 23, 1998, the United States intervened to
defend the Barr Amendment.
Ultimately, Judge Roberts concluded that the Barr
Amendment did not preclude counting, announcing, and
certifying the results of the marijuana initiative. In
reaching that conclusion, Judge Roberts invoked the
principle that a construction of a statute which avoids the
resolution of constitutional issues is preferred and that, if the
Barr Amendment precluded the counting, announcing, and
certifying the results of the marijuana initiative, it would be
of dubious constitutionality. Turner, 77 F. Supp. 2d at 34.
By my order of July 24, 2001, I denied plaintiffs’ fee
petition on the grounds that plaintiffs had failed to meet the
jurisdictional deadline EAJA imposes. Initially, plaintiffs
took the position that the Board should be liable for “any
amount of fees awarded under § 1988 that exceeds the
amount awarded under EAJA.” Order of July 24, 2001, at
15, quoting Plaintiffs’ Motion for Attorney’s Fees and
Expenses at 23-24. In fairness to plaintiffs, I permitted them
to discuss the validity of any award against the Board in light
of my determination that plaintiffs could not recover any fees
against the United States. Plaintiffs have responded by
insisting that the Board is obliged to pay all the legal fees
incurred from the commencement of the case until Judge
Roberts’ opinion plus the time spent litigating the validity of
their petition for fees. Plaintiffs take this position even
though plaintiffs and the Board sought a declaration that the
Barr Amendment was unconstitutional, in the face of
opposition from the United States.
28a
INTRODUCTION
“e
Section 1988 empowers the district court, “ in its
discretion,” to provide “[a] reasonable attorney’s fee as part
of the cost” to the prevailing party in any action brought
under 42 U.S.C. § 1983 42 U.S.C.A. § 1988 (b) (1994).
“(The] fee applicant bears the burden of establishing
entitlement to an award, documenting the appropriate hours,
and justifying the reasonableness of the rates.” Covington v.
District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir.1995)
(quoting Hensley v. Eckhart, 461 U.S. 424, 437 (1984)).
I must first determine that the predicate requirements
for 42 U.S.C.A. § 1988 (1994) are met insofar as plaintiffs
were prevailing parties and the Board’s actions were
taken under color of state law. I will then determine
whether the Board may be held jointly and severally
liable for all the fees plaintiffs incurrec; whether, as the
Board claims, exceptional circumstances preclude the
award of any attorney fees against it; and, if not, what
portion of the fees should be paid by the Board.
Prevailing Party
One of the requirements for an award under §
1988 is that the applicant be a “prevailing party.” District
of Columbia v. Patterson, 667 A.2d 1338 (D.C. 1995).
Plaintiff no doubt meets this definition:
To qualify as a prevailing party for
attorneys’ fees purposes, a plaintiff
must show that the final result
represents in a real sense, a
disposition that furthers their interest.
In applying this inquiry. The court
must focus on_ the precise
29a
factual/legal condition that the fee
claimant has sought to change, and
then determine if the outcome confers
an actual benefit or relief from a
burden.
Grano_v. Barry, 783 F.2d 1104, 1108 (D.C. Cir.
1986)(citations omitted).
Plaintiff here sought to enjoin the Board from
withholding the results of the November 3, 1998, ballot
initiative, and that is precisely what they achieved
through Judge Robert’s September 17", 1999 Order. The
Board’s argument that plaintiffs were not a prevailing
party because the Board was never found to be at fault is
inapposite because it confounds two distinct concepts,
1.e., “prevailing party” and whether “good faith” is ever a
special circumstance justifying denial of a fee award
under § 1988. See infra at 7. A party prevails
irrespective of whether his Opponent acted with fault or in
bad faith.
Section 1983 Liability
Defendant argues that an award of attorneys’ fees
is not in order here because liability for 4 fees under §
1988 is predicated on liability under 42 U.S.C.A. § 1983
(1994), for the violation of constitutional or federal statutory
rights under the color of a “statute of any State... or the
District of Columbia.” Defendant reasons that, because it did
not act under color of a statute of the District or Columbia,
but rather of federal congressional legislation, it cannot be
held liable under § 1983. This argument ignores that § 1983
itself acknowledges that “[flor the purposes of this section,
any Act of Congress applicable exclusively to the District of
Columbia shall be considered to be a Statute of the District of
Columbia.” Pub. L. No. 96-170 § 1, 93 Stat. 1284 (1979).
30a
District Properties Associates v. District of Columbia, 743
F.2d 21, 27 (D.C. Cir. 1984), applied this provision in
treating a Congressional statute establishing the District of
Columbia Administrative Procedure Act as a statute of the
District of Columbia. In another case, when the Supreme
Court held that a clause of a statute Congress enacted
regulating activity near embassies located in the District of
Columbia was unconstitutional, this Court, per Judge Gasch,
imposed liability for attorneys’ fees upon the District of
Columbia pursuant to 42 U.S.C.A. § 1988(1994), rejecting
the District’s claim that it “did not benefit from the statute.”
Boos v. Barry, 704 F. Supp. 5, 9 (D.D.C. 1989). Likewise, in
this case, the Barr Amendment, although passed by
Congress, applies only to the District of Columbia and must
be treated as a statute of the District of Columbia for the
purposes of §§ 1983 and 1988.
Joint and Several Liability
We therefore reach the ironic result of holding the
District of Columbia accountable for a Congressional
enactment that the District attacked as unconstitutional. ~
Indeed, plaintiffs demand that the Board be jointly and
severally liable for all the fees incurred in this case, from the
beginning to the end. The Board understandably rejects that
claim and argues that this case is one where special
circumstances make the award of any fees unjust.
Plaintiffs cannot impose joint and several liability
upon the District and the United States. A fundamental
analogy to well-established tort law is instructive. It is
certainly true that multiple defendants found liable for a
single injury are deemed to be joint torfeasors and any
compensatory damages for that single injury must be
awarded jointly and severally against them. Faison _v.
31a
Nationwide Morta. Corp., 839 F.2d 680, 686 (D.C. Cir.
1987). It is equally true, however, that:
If two or more persons, acting
independently, tortiously cause distinct
harms or a single harm for which there is a
reasonable basis. for division according to
the contribution of each, each is subject to
liability only for the portion of the total
harm that he has himself caused.
Restatement (Second) of Torts § 881 (1979). In this Case, it
must be said either that the District and the United States
caused plaintiffs two distinct harms, i.e., the fees incurred
prior to November 7, and those incurred after November 6, or
that the District and the United States caused plaintiffs a
single harm, plaintiffs’ incurring legal fees, but there is a
reasonable basis for dividing responsibility between them. In
either instance, it is irrational and unfair to force the District
to pay fees plaintiffs incurred after November 6, 2001, when
the District and plaintiffs jointly sought the same relief and
all the work plaintiffs’ counsel did was directed against the
arguments being made by the United States and the United
States alone.
Special Circumstances
A prevailing party in a § 1983 action is generally
entitled to attorneys’ fees unless special circumstances would
render the award unjust. - Hensley, 461 U.S. at 429; Grano,
783 F.2d at 111 I (applying the same rule used in
Commissioners Court v. United States, 683 F.2d 435, 438
(D.C. Cir. 1982)). Special circumstances, however, have
been held to be quite rare and the exception is narrowly
construed. Hatfield v. Hayes, 877 F.2d 717, 719 (87° Cir.
32a
1989). See 2 M. Schwartz & J. Kirklin, Section 1983
Statutory Attorney Fees § 3.13 (3d ed. 1997).
A commonly argued special circumstance is the
defendant’s good faith interpretation of a law that is
ultimately held to be in violation of a federal right. Yet it is
widely recognized that a defendant’s good faith does not
ordinarily constitute a “special circumstance” in determining
the propriety of an attorney fee award. Williams v. Hanover
Housing Authority, 113 F.3d 1294 (1”’ Cir. 1997); Harrington ~
v. DeVito, 656 F.2d 264 (7 Cir. 1981), cert. denied 455 U.S.
993 (1982); Love v. Maw, 620 F.2d 235 (10 Cir. 1980);
Riddell_v. Nat’l Democratic Party, 624 F.2d 539 (5" Cir.
1980).
Rejecting any claim of “good faith”, plaintiffs argue
that had the Board of Elections not construed the Barr
Amendment so cautiously to preclude even the expenditure
of the nominal amount of money it would have taken to
tabulate and announce the results, this lawsuit would not
have existed and plaintiffs would not have had to spend a
penny in legal fees. That argument is buttressed by Judge
Roberts’ ultimate conclusion that the Board was wrong and
that the Barr Amendment did not preclude the tabulation and
announcement of the results. But, hindsight is always 20/20
and the worst that could be said of the Board is that it could
have been more courageous in its interpretation. At the risk
of another “but.” one also has to note the utter dependence of
the District of Columbia upon Congress for its budget. In
light of this truly unique political arrangement, it is
understandable to conclude that a cautious interpretation of
the Barr Amendment was the better part of valor.
In any event, the proper focus in § 1983 cases is never
on the defendants’ “fault.” It must never be forgotten that
Congress enacted the fee shifting provision not to punish
33a
defendants but to encourage lawyers to undertake litigation to
vindicate the constitutional and Statutory rights of those who
could not otherwise afford to vindicate those rights.!_ While
the Board did join plaintiffs in seeking a declaratory
judgment that the Barr Amendment was unconstitutional, ‘it
did so only after being sued itself. There is absolutely no
indication anywhere that the Board would have brought the
lawsuit itself had it not been sued. It therefore must be said
that, but for plaintiffs’ bringing the lawsuit, the results of the
initiative would have never been published. The fee shifting
Statute is designed to create an incentive for “private
Attorney Generals” to bring meritorious lawsuits by
vindicating the citizens’ rights when the government may be
incapacitated by political or budgetary considerations from
bringing them. Boos, 704 F. Supp. at 9. Plaintiffs fall
perfectly within that rubric and the interest in encouraging
lawyers to undertake litigation compels the conclusion that
this is not one of those rare cases where the award of fees is
fundamentally unjust.
I In fact, the above-cited cases, relied on by the defendants, illustrate that the
award of attorneys’ fees is “not designed merely to penalize defendants, but to
encourage injured individuals to seek relief.” Id. (citing Piggie Park, 390 U.S. at
402, 88 S.Ct. at 956). Thus, the question of fairness centers not on the defendant,
but on the plaintiff. In the instant case the plaintiffs had no intervenors with
similar interests and their interests were soundly vindicated as a portion of the
Statute was found unconstitutional. Moreover, if the District of Columbia were
absolved of its obligation to pay the award, plaintiffs or their counsel would have
to absorb the costs, which would be unjust to them and would deter future suits.
See Piggie Park, 390 U.S. at 402, 88 S.Ct. at 966. Such a result would fly in the
face of the premium that the Civil Rights Act places on litigants as private
attomeys general vindicating individual rights. See Christiansburg Garment Co.
vy. EEOC, 434 U.S. at 420, 98 S.Ct. at 699; Miller v. Staats, 706 F.2d at 340;
Boos, 704 F. Supp at 9.
34a
Apportionment of Fees
It hardly follows that the Board is responsible for
all of the fees claimed. Although joint and several
liability is urged by plaintiffs, the court is obliged to
“make every effort to achieve the most fair and sensible
solution that is possible.”2 Grendel’s Den Inc. v. Larkin,
749 F.2d 945, 960 (Ist Cir.1984). Such an effort entails
an apportionment of the fee liability.
There is no single formula for determining fee
apportionment in a § 1988 action, and there is no relevant
case law in this Circuit. In other Circuits, the various
apportionment factors and methods employed have
included: equal division among the defendants; the jury’s
assessed actual damages; holding a particular defendant
who is solely or largely responsible for a single claim
liable for fees related to that claim: relative culpability of
the various defendants: and time spent by the plaintiff in
preparing the case against each defendant. See generally
Council for Periodical Distributors Associations v. Evans,
827 F.2d 1483, 1487 (11th Cir. 1987)(citations omitted).
The last two of these factors are particularly appropriate
in the instant case. In Southeast Legal Defense Group v.
Adams, 657 F.2d 1118 (9" Cir., 1981), the court
considered the time spent by plaintiffs’ attorneys against
a particular defendant. In that case, as here, plaintiff had
sued a federal and a state defendant, and the federal
2 The fact that 1 denied an award of fee liability against the United States
in my Order of July 23. 2001, is irrelevant to assessing liability against the
D.C. Board. Plaintiffs failed to meet the strict deadlines for fee requests of
EAJA, and the D.C. Board should not have to shoulder the costs of this
mistake.
35a
defendant had been exempted from liability for its share
of attorney’s fees. The District Court then apportioned
75% of the total fees to the state defendants, as they were
the primary focus of the plaintiffs actions. The Circuit
Court subsequently affirmed this apportionment
method, noting that at least 75% of plaintiffs counsel’s
preparation was directed towards the state defendants.
Adams, 657 F.2d at 1125. This time-spent approach was
also endorsed in Jenkins by Agyei v. State of Mo., 838
F.2d 260 (8th Cir. 1988) and Nash v. Chandler, 848 F.2d
567 (Sth Cir. 1988).
Under the time-spent approach, plaintiffs should
be able to recover no more than the fees and expenses
incurred in opposing the D.C. Board. Thus, the fees
related to the preparation of the complaint and all other
work conducted prior to the Board’s request for a
declaratory judgment on November 6, 1998, when it
effectively ceased opposing plaintiffs, are potentially
recoverable under this approach. A review of plaintiffs’
exhibits shows that Graham Boyd spent 69.9 hours on the
matter up to and including November 6. Art Spitzer and
Aaron O’Toole spent 13.6 hours and 24 hours,
respectively, on pre-November 7 matters. Under the
current edition of the matrix established in Laffev v.
Northwest Airlines, Inc, 572 F ‘Supp. 354 (D.D.C. 1983),
these figures amount to $25,590. Plaintiffs also seek to
recover $569 in expenses incurred prior to November 8,
bringing the total to $26,159.
But plaintiffs do not deserve all of this amount
because the degree-of-culpability factor calls for a further
reduction, as the Board was not primarily responsible for
the violation. As the court in Evans wrote, “In cases such
as the one now before the court, however, it may be
36a
appropriate for a district court to apportion fees between
the active instigator of a wrong and a more passive co-
defendant who had a more peripheral or ministerial role
in the wrong.” Id., at 1487. See also Jose P. v. Ambach,
669 F.2d 865, 871 (2d Cir.1982). Here, it is clear that the
United States was overwhelmingly responsible for
initially suppressing the election results, because it was
Congress that passed the legislation that restricted the
Board’s ability to certify the ballot results. Considering
that Congress passed the Barr Amendment and, as I have
explained, the Board’s initial position as to the Barr
amendment was cautious but not unreasonable, I will
apportion the fees 90% to the United States and 10% to the
Board. Thus, plaintiffs shall be awarded $2,616 in fees and
expenses, which is 10% of their fees incurred as of
November 6, 1998.
Fees on Fees Liability
In addition to the liability for fees incurred in
litigating the plaintiffs claim, I must also determine the
“fees on fees” liability for time spent preparing the fees
petitions. The following chart indicates the hours spent
by each of the plaintiffs’ attorneys in preparing briefs on
the fees motions. These figures are gleaned from
plaintiffs’ attorneys fees briefs. The fourth column,
“Hours Spent on Unspecified Fees,” represents fees work
where the plaintiffs failed to distinguish between the §
1988 claims and the EAJA claims.
37a
Attorney} Hours Hours Hours Rate | Total For Total for
Spent Spent | Spent on Verified Unspecified
on on 42 | Unspecifie Hours on Hours
EAJA USC d Fees 1988
Fees 1998
Fees
Graham 33.1 240 $8,109.50
Boyd
Alicia 31 9 86.5 160 $1,440 $13,840
Young
Arthur 6.5 Vea 350 $2,275 $2,520
Spitzer
Aaron 0 160
O’ Tool
$3,715 $24,469.50
Plaintiffs seek a total of $33,140.50 for their
Services in litigating the fees motions. Right away, I
Shall strike $4,960 from this total, which represents
Alicia Young’s 31 hours researching EAJA issues, as
plaintiffs cannot possibly expect to bill the District for
arguments that were applicable only to the United States
and that did not prevail in the first place. Thus, I am left
to consider the remaining $28,184.50, which represents
$3,715 of work that is attributed solely to the § 1988
claim and $24,469.50 of unspecified fees work that is not
discretely attributed by plaintiffs to either the EAJA
Claim or the § 1988 claim.
The unspecified hours spent on the fees motions
present the more difficult questions with regard to fees .
liability. One approach would be to deny all of this
38a
portion of the fees application, on the grounds that
plaintiff should have been more diligent in documenting
the allocation of time between the two separate claims.
But this seems unduly harsh, given that plaintiffs cannot
reasonably be expected to have foreseen the ultimate
importance of this allocation. The more _ sensible
approach is to apportion the hours spent on the fees
motions according to the respective length of each
portion of plaintiffs’ motions. This makes intuitive
sense, as the relative length of the brief sections is a
rough coefficient of the relative time spent researching
and editing those sections.
The plaintiffs’ April 10th, 2000, motion for fees
runs 24 pages. Of these, seven pages cover the § 1988
fees claim, while over 11 pages address the EJEA claim.
In the plaintiffs’ Reply in support of their fees motion,
roughly nine pages cover their claim to fees under § 1988
(1994), while eight pages cover fees under the EAJA
statute. In total, of the 35 combined substantive pages
from the two briefs, 16, or 46%, address § 1988. Forty-
six percent of $24,469.50 is 511,256. Adding in the
53,715 attributed solely to the § 1988 fees claim, I arrive
at a total of $14,971 that can fairly be attributed to the §
1988 claim.
But this does not mean that plaintiffs deserve
$14,971. Rather, I shall reduce this figure by 90%, because
I found D.C. liable for only 10% of the fees incurred in the
period prior to November 6, 1998. This reduction in the
fees on fees award is entirely appropriate, given plaintiffs’
lack of success in its motion for fees against D.C. See
3 The remaining pages comprise an introduction, a
conclusion and a discussion of joint and several liability.
a
39a
Ustrak v. Fairman, 851 F.2d 983 (7" Cir. 1988). It would
make little sense to fully reward plaintiffs for their efforts in
arguing an essentially unsuccessful fee motion. Ten percent
of $14,971 equals $1,497, and this amount shall be paid by
the Board. to plaintiffs.
Added to the $2,616 in liability for the pre-
November 7th substantive work, plaintiffs’ total fees award
Shall be $4,113.
A separate order accompanies this Memorandum Opinion.
/s/ John M. Facciola
John M. Facciola
United States
Magistrate Judge
40a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 98-2634
WAYNE TURNER, ET AL.
V.
D.C. BOARD OF ELECTIONS AND ETHICS
Before: FACCIOLA,
United States Magistrate Judge.
(Filed July 24, 2001)
MEMORANDUM OPINION AND ORDER
FACCIOLA, United States Magistrate Judge.
I. INTRODUCTION
This matter is before me for resolution of
plaintiffs’ Motion for Attorney’s fees. Plaintiffs, five
registered D.C. voters and a committee of such voters, filed
this lawsuit on October 30, 1998, seeking to have the election
results from Ballot Initiative 59 on medical marijuana
announced and certified by the D.C. Board of Elections and
Ethics (“the Board”). The Board had refused to release the
results of Initiative 59 for fear such action would violate the
Barr Amendment, az enactment which denies funding to any
ballot initiative aimed at legalizing or reducing penalties for
the possession, use, or distribution of controlled substances.
Omnibus Consolidated Appropriations Bill of 1998, Pub. L.
No. 105-277, 112 Stat. 2681-150 (1998). The United States
4la
formally intervened in the lawsuit on November 30, 1998 to
defend the constitutionality of the Amendment. By Order
dated September 17, 1999, Judge Roberts granted plaintiffs’
motion for summary judgment in part and ordered the Board.
to compute, certify and announce the results of the election.
Neither the D.C. Board nor the United States appealed Judge
Roberts’ ruling. A more detailed history of this case is set
forth in Judge Roberts’ opinion of September 17, 1999. See
Turner, et _al. v. District of Columbia Bd. of Elections and
Ethics, 77 F.Supp.2d 25 (D.D.C. 1999).
Plaintiffs filed their Motion for Attorneys’ Fees on
March 31, 2000, seeking fees against both the D.C. Board
and the United States. With respect to their fee petition
against the United States, plaintiffs seek fees under the Equal
Access to Justice Act (““EAJA”), 28 U.S.C.A § 2412(d)(1)(A)
(1998). The United States raised several procedural
objections to plaintiffs’ motion, including a timeliness
defense.!_ In an Order dated March 21, 2001, I determined
that based on the evidence before me, I could not resolve the
timeliness issue, and ordered that an evidentiary hearing be
held on the matter. Order of March 21, 2001, at 7-8.
Accordingly, I denied plaintiffs’ motion for fees without
prejudice to refile. An evidentiary hearing was held on the
timeliness issue on May 16, 2001.
| The United States also objected to plaintiffs’ fee petition on the grounds
that 1) EAJA provided no basis for an award of fees in this case since this
Suit was not an action brought against the United States, see 28
U.S.C.A § 2412(d)1)(A) (1998), and 2) pursuant to 28 U.S.C.A. §
2403(a) (1994), the federal government’s liability was limited to court
costs only. Order of March 21, 2001 at 3, 5. My Order of March 21,
2000 rejected these arguments, but left open the issue of the untimeliness
of plaintiffs’ fee petition against the United States.
42a 7
Plaintiffs maintain that even assuming their EAJA
petition was untimely, the doctrine of equitable tolling should
apply here to excuse their late filing. For the reasons set
forth below, the court holds that the circumstances of this
case do not merit equitable tolling, and therefore plaintiffs’
Motion for Attorneys’ Fees against the United States will be
denied.
BACKGROUND
Subsequent to Judge Roberts’ grant of partial
summary judgment for the plaintiffs, the parties jointly
drafted and submitted a proposed order to Judge Roberts’
- which indicated that if defendants? did not appeal Judge
Roberts’ ruling, the parties would try to resolve the fees’
issue within thirty days and thereafter report to the court. See
Transcript of May 16, 2001 Hearing at 11, 12. That proposed
order was memorialized by Judge Roberts on October 8,
1999, in an Order which reads:
Upon consideration of plaintiffs’ Motion for
an Order Holding in Abeyance Proceedings
Regarding Attorneys’ Fees and Costs, and of
the defendants’ consent thereto .. . It is
therefore, pursuant to F.R. Civ. P. 54, and
Local Rule 215, hereby
ORDERED, that the motion is granted and
all issues relating to an award of attorneys’
fees and costs shall be held in abeyance until
further order of this Court; and it is further
2 For simplification purposes only, the Court uses this term to connote
both the defendant, the D.C. Board and the intervenor, the United States.
43a
ORDERED that within 30 days of the
deadline for the filing of an appeal in this
case, if no appeal is filed . . . the parties shall
confer with respect to issues of attorneys’ fees
and shall submit to the Court proposed
order(s) regarding further proceedings on the
fee issues.
Order of October 8, 1999 at i 3
The expiration date for the federal government’s
(“government”) appeal period was sixty days from the date
of Judge Roberts’ September 17, 1999 Order, or November
16, 1999. Fed. R. App. P.4(a)(1). Therefore, under the
abeyance Order, if the government did not appeal Judge
Roberts’ summary judgment ruling, the parties had thirty
days from November 16, 1999 to confer and thereafter
submit a proposed order to the court. Id. at 2. Neither the
D.C. Board nor the United States appealed the summary
judgment ruling.
Pursuant to 28 U.S.C.A. § 2412(d)(1)(B) (1998), a
party seeking an award of fees against the United States must
file its application within 30 days of final judgment in the
action. § 2412(d)(1)(B). Accordingly, under EAJA,
plaintiffs had until December 16, 1999, or thirty days after
the government’s deadline for filing an appeal, to file their
application for fees. Jeff Markowitz, the Department of
Justice (“DOJ”) attorney representing the government at that
time, testified that he was not at all familiar with the EAJA
filing deadline when he agreed to the October 8, 1999 Order
with plaintiffs’ attorney, Graham Boyd. T. at 70, In. 10-11,
Markowitz did not recall anyone from DOJ ever calling to his
attention the EAJA filing deadline. Id., In. 23. Plaintiffs’
attorney Boyd did not state definitively whether he was
aware of the 30-day EAJA filing deadline or not at the time
44a
Judge Roberts’ Order was issued. T. at 22, In. 9-20. Both
Markowitz and Boyd have testified that neither attorney
discussed any EAJA deadlines with one another at any time
during their discussion of fees in this case. T. at 29, In. 7-9;
T. at 58, In. 2.
On or about November 17, 1999, the day after the
government’s time to appeal had lapsed, Boyd contacted
Markowitz to discuss fees. T. at 13, In. 2-4. Markowitz told
Boyd he could not discuss the fees’ issue because he was
leaving the DOJ shortly and felt it would be more productive
for Boyd to take up the fees’ issue with Markowitz’s
successor, who was yet unknown. Id., In. 5-8. Markowitz
indicated to Boyd that he would contact Boyd when he
learned who would be taking over the Turner case for the
government. T. at 14, In. 13-14.
3 When asked whether Boyd recalled being aware of the EAJA filing
deadline September 1999, when Judge Roberts’ opinion was issued, Boyd
responded:
My recollection is that I was aware of
the number of days that we had to file.
Whether I was focusing on EAJA or the
federal or local rules I’m not sure. What I
can say is that I certainly was not aware of
the case law that you [the United States]
ended up citing in your brief regarding the
construction of the deadline under EAJA.
Q: Well, did you ever look at EAJA,
specifically Section 2412(d\(1\(B), which
provides that the petition had to be filed
within 30 days of final judgement?
Boyd: Again, I’m not— the 30-day
figure I think is one I was aware of. I
can’t, thinking back to 1999, remember
whether it was, you know, whether | was
focusing on that or the other.
T. at 22, In. 9-20.
45a
Markowitz testified that sometime subsequent to
December 7, 2000, he relayed to Boyd that attorney Mark
Quinlivan would be Markowitz’s-successor.4 T. at 14, In. 21-
24. In preparation for his departure on December 15, 1999,
Markowitz prepared a transfer memo, dated December 1,
1999. T. at 55. Quinlivan recalls receiving the transfer
memo within a day or two of December 1, 1999. T. at 76, In.
11-17. According to Quinlivan, the transfer memo indicated
that Boyd would be making a settlement offer regarding fees
by December 16, 1999. T. at 77, In. 20-25. Quinlivan
testified that he did not hear from Boyd at anytime during
December 1999. T. at 80, In. 3.
Although the exact date is in dispute, Boyd and
Quinlivan had their first conversation about this case after
Boyd learned that Quinlivan would be taking over the case
for the government. During their first conversation, which
took place sometime in late December or the first part of
January,> Quinlivan requested a formal settlement proposal
from plaintiffs. T. at 15, 16. Quinlivan also testified that
sometime in early January, Boyd referenced the parties’
October 8, 1999 Order holding all fees’ issues in abeyance
4 Markowitz recalls that he likely told Boyd about his successor on or
before December 14, 1999, as Markowitz’s last day at the DOJ was
December 15, 1999. T. at 60, In. 12-14. Boyd testified that his best
recollection was that he learned of Quinlivan’s entry into the case in
late December 1999 or early January 2000, T. at 15, In. 8-9, although,
he testified, it could have been before December 20, 1999. T. at 35, In.
19-20.
> Quinlivan recalls having his first conversation with Boyd sometime
during the second week of January 2000, T. at 80, In. 5-8. Boyd
estimates that he learned who Markowitz’s successor would be in late
December or early January, though possibly before December 20, 1999.
. at 15, 35. According to Boyd, he called Quinlivan immediately after
learning Quinlivan would be taking over the case for the government, and
they talked within a day or two after that. T. at 15, In. 12-16,
46a
pending settlement efforts, and Quinlivan thereafter reviewed
the consent order. T. at 87, In. 20-25. Quinlivan testified
that the first time he focused on the relationship between the
October 8, 1999 Order and the EAJA deadline in the case
was “sometime in January”. T. at 87, In. 18-25, T. at 88, In.
1-5,
On January 21, 2000, the parties held a conference
call in which plaintiffs’ attorneys Graham Boyd and Arthur
Spitzer, the government’s attorney, Quinlivan, and a lawyer
for the D.C. Board, discussed the possibility of settling the
fee issue. T. at 17. The parties were unable to reach a
resolution, and on February 4, 2000, they filed a report with
Judge Roberts proposing a schedule for the fee petition. T. at
17-18. In drafting the proposed schedule for fees, attorney
Quinlivan specifically asked for a notation which indicated
that the government reserved its right to object to the
timeliness of plaintiffs fee petition, although he did not
specify on what grounds.® T. at 18, In. 3-8; T. at 82, In. 22-
24.
Pursuant to the parties’ proposed schedule, Judge
Roberts issued an Order on February 14, 2000 directing
plaintiffs to file their fees’ motion on or before March 24,
2000. Order of February 14, 2000 at 1. After a subsequent
© Quinlivan recalls raising the timeliness issue the first time he and Boyd
spoke about the case, which Quinlivan estimates to be the second week in
January 2000. T. at 80, In. 16-18. He testified that he also spoke with
Boyd about the timeliness issue during the January 21, 2000 conference.
T. at 82. During that conference, according to Quinlivan, the government
told Boyd that the fee petition was untimely. Id. at In. 6-7. Quinlivan
recalls Boyd opposing this, mentioning the parties’ consent order of
October 8, 1999, and stating the parties had agreed to hold the fees’ issue
in abeyance. Id. at In. 7-10. Quinlivan also recalls in the same
conversation mentioning to Boyd that this case may not be a suit “against
the United States” under 28 U.S.C.A § 2412(d\1)(A). T. at 82, In. 12-14.
OO
47a
extension, plaintiffs filed their fee petition on March 31,
2000, approximately three and one-half months after the
EAJA deadline had run.
ANALYSIS
The EAJA Filing Deadline
EAJA provides in relevant part:
A party seeking an award of fees and
other expenses shall, within thirty
days of final judgment in the action,
submit to the court an application for
fees and other expenses which show
that the party is a prevailing party and
is eligible to receive an award under
this subsection, and the amounts
sought...
28 U.S.C.A. § 2412(d)(1)(B)(1998) (emphasis added).
Meeting | this thirty-day EAJA deadline is a
jurisdictional prerequisite to government liability under
EAJA. See Action on Smokin Health v. Civil
Aeronautics Bd. 724 F.2d 211, 225 (D.C. Cir. 1984):
American Ass'n of Retired Persons v. EEOC, 873 F.2d 402,
407 (D.C. Cir. 1989); Bryan vy. OPM, 165 F.3d 1315, 1321
(10" Cir. 1999) (“The thirty-day time limitation is
jurisdictional in nature.”); Bazalo v. West, 150 F.3d 1380,
1383 (Fed. Cir. 1998) (“We have unequivocally held that the
thirty-day time limit for filing an EAJA application after final
disposition of an adversary adjudication is a jurisdictional
prerequisite to an award of attorney fees.”); Yang v. Shalala,
22 F.3d 213, 215 n. 4 (9" Cir.); Welter v. Sullivan, 941 F 2d
674, 675 (8° Cir. 1993); Myers v. Sullivan, 916 F.2d 659.
666 (11" Cir. 1990) (same); Taylor v. United States, 749
48a
F.2d 171, 174 (3d. Cir. 1984) (same); Allen v. Secretary of
HHS, 781 F.2d 92, 93 (6 Cir. 1986). Because the thirty-day
requirement is jurisdictional, neither the Courts nor the
parties may waive it. See Howitt v. U.S. Department of
Commerce, 897 F.2d 583, 583-84 (1" Cir. 1990) (“The
circuit courts have unanimously agreed that the statute’s 30-
day time limit is jurisdictional, and therefore that neither
they parties nor the courts may waive it.”) (citing Adam
Sommerrock Holzbau, Gmbh v. United States, 866 F.2d 427,
430 (Fed.Cir.1989); MacDonald Miller Co. v. NLRB, 856
F.2d 1423, 1425 (9th Cir.1988); J-I-J_ Construction Co. v.
United States, 829 F.2d 26, 29 (Fed. Cir.1987); Western
Newspaper Publishing Co. v. NLRB, 821 F.2d 459, 460 (7
Cir.1987); Sonicraft. Inc. v. NLRB, 814 F.2d 385, 386 (7th
Cir.1987); cf. Long Island Radio Co. v. NLRB, 841 F.2d
474, 477 (2d Cir.1988) (30-day time limitation in 5 U.S.C. §
504(a)(2) for filing an initial application for attorney’s fees
= agency proceedings under EAJA is jurisdictional), Clifton
Heckler, 755 F.2d 1138, 1144-45 (5 Cir.1985)
cama 30day time limitation in 28 U.S.C. §
2412(d)(1)(B) regarding initial EAJA application in civil
actions is jurisdictional); Action on Smoking & Health v.
CAB, 724 F.2d 211, 225 (D.C. Cir.1984) (same); Columbia
Mfg. Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir.1983)
(per curiam) (5 U.S.C. § 504(a)(2) imposes jurisdictional
limit); Monark Boat Co. v. NLRB, 708 F.2d 1322, 1326-27
(8" Cir.1983) (same)).
The claim of untimeliness is an affirmative defense
and therefore the defendant bears the burden of pleading it.
See Bowden v. U.S., 106 F.3d 433, 437 (D.C. Cir. 1997).
However, once the defendant has met its burden, the plaintiff
must then plead and prove facts which support equitable
avoidance of the result of its untimely filing. Id. Defendant
has met its burden of untimeliness. It is undisputed that . nal
judgment in this case was entered on November 16, 1999.
ee
49a
Judge Robert’s Order granting plaintiffs’ motion for
summary judgment was entered on September 17, 1999, see
Turner, 77 F.Supp.2d at 35, and the United States’ time for
appeal lapsed on November 16, 1999, See Fed. R. App. P.
4(a)(1). Because the United States did not appeal Judge
Roberts’ Order, the date of final judgment for this matter was
November 16, 1999, Accordingly, under 28 U.S.C.A. §
2412(d)(1)(B), the plaintiffs had until December 16, 1999 to
file their fee petition.” Plaintiffs filed their motion for fees
over three months later, on March 31 , 2000.
Plaintiffs argue that principles of equitable tolling
excuse their admittedly late filing. They rely upon the
Supreme Court’s ruling in Irwin v. Dep’t of Veteran Affairs,
498 U.S. 89, 95 (1990), which held that equitable tolling is
applicable to jurisdictional deadlines where Congress has
already waived the federal government’s sovereign
immunity. Plaintiffs’ Reply in Support of Plaintiff's Motion
for_Attorney’s Fees and Expense (“Pl. Reply”) at 12.
Plaintiffs reason that because Congress waived sovereign
7 There is minor discrepancy between the parties’ recitation of these
relevant dates and the actual deadlines. In its Opposition to plaintiffs’
motion for fees, the United States indicates that Judge Roberts’ Order
granting plaintiffs’ motion for summary judgment was entered on
September 20, 1999. Uni w ition
t intiff Motion for Attorneys’ Fees an Ex (“U.S. Memo
Opp.”) at 7. This date does not accord with the date of Judge Robert’s
published Opinion and Order, Tumer v. D.C. f Elections and
Ethics, 77 F.Supp.2d 25, nor with the docket sheet in this case, which
both list September 17, 1999 as the date of judgment. Because the United
States lists September 20, 1999 as the date of final judgment, they
calculate that the time for appeal lapsed on November 19, 1999, and
consequently, they claim plaintiffs’ fee petition under EAJA was due on
December 20, 1999. See U.S. Memo Opp. at 7. This Court will use the
date that appears on Judge Roberts’ Order and the court’s docket sheet,
September 17, 1999, as the starting point for its analysis.
50a
immunity in enacting EAJA, EAJA’s provisions are subject
to the principles of equitable tolling. Id.
The issue before the Court in Irwin was whether the
plaintiff's late-filing in a Title VII suit barred the court from
hearing plaintiff's claim. Id. at 93. The Court held that it did
not, and in so doing, stated that the case “affords us an
opportunity to adopt a more general rule” regarding the
applicability of equitable tolling in cases against the federal
government. Id. at 95. The Court concluded that “the same
rebuttable presumption of equitable tolling applicable to suits
against private defendants should also apply to suits against
the United States...” id. at 95, 96, thereby specifically
rejecting its past ad hoc approach to these cases, which had
the “disadvantage of continuing unpredictability.” Id. at 95.
Prior to Irwin, the D.C. Circuit, as discussed above,
held that EAJA’s filing deadline was jurisdictional and could
not be waived. See, e.g., Action on Smoking, 724 F.2d at
225. After Irwin, both the Supreme Court and this Circuit
have been silent as to whether EAJA is subject to equitable
tolling.8 The Court need not decide that issue today. Even
assuming the § 2412(d)(1)(B) filing deadline is subject to
equitable tolling, the circumstances of this case do not
warrant its application.
Analysis of Equitable Tolling
Equitable tolling can apply in several circumstances.
In Irwin, the Supreme Court noted that equitable tolling
8 Two post-Irwin cases in this Circuit give, at best, uncertain guidance.
See Scott v. National Transportation Safety Board, 114 F.3d 305 (D.C.
Cir. 1997) (EAJA deadline jurisdictional but no discussion of equitable
tolling); Washington v. Washington Metropolitan Area Transit Authority,
160 F.3d 750 (D.C. Cir. 1998), cert. denied, 527 U.S. 1038 (1999)
(applying equitable tolling to Title VII deadline).
Sla
applies in situations “where the claimant has actively pursued
his judicial remedies by filing a defective pleading during the
Statutory period” or where he has been “induced or tricked by
his adversary’s misconduct into allowing the filing deadline
to pass.” Irwin at 96. This Circuit has indicated that
equitable tolling is appropriate where
“a claimant has received inadequate notice, ...
where a motion for appointment of counsel is
pending and equity would justify tolling the
Statutory period until the motion is acted
upon, ... where the court has led the plaintiff
to believe that she had done everything
required of her, ... [or] where affirmative
misconduct on the part of a defendant lulled
the plaintiff into inaction.”
Bull, S.A. v. Comer, 55 F.3d 678, 681 (D.C. Cir. 1995)
(citing Mondy v. Secretary of the Army, 845 F.2d 1051,
1057 (D.C. Cir. 1988) (quoting Baldwin County Welcome
Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d
196 (1984) (per curiam)). Further, a plaintiff's justifiable
reliance on the advice of a governmental official may also
excuse the plaintiff's failure to meet a filing deadline. See
Bull, S.A. at 681 (quoting Jarrell v. United States Postal
Service, 753 F.2d 1088, 1092 (D.C. Cir. 1985). Nonetheless,
equitable tolling is only available in “extraordinary and
carefully circumscribed instances,” Smith-Haynie v. District
of Columbia, 155 F.3d 575, 579-80 (D.C. Cir. 1998), and
courts have been unwilling to apply it to “a garden variety
claim of excusable neglect.” Washington v. WMATA, 160
F.3d 750, 753 (quoting Irwin, 498 U.S. at 96).
Plaintiffs do not assert, nor could they make the
claim, that they “actively pursued” their judicial remedies by
“filing a defective pleading during the statutory period.”
52a
Plaintiffs made no filing in this case until March 31, 2000,
approximately three and one-half months after the EAJA
deadline had passed. Furthermore, plaintiffs have shown no
affirmative wrongdoing on the part of defendants. Indeed,
plaintiffs conceded at the evidentiary hearing on this matter
that the defendants have engeged in no affirmative
misconduct or trickery that would justify equitable tolling.
T. at 92, In. 12-19; T. at 29, In. 23.
Instead, plaintiffs contend that equitable tolling
should apply because the government induced plaintiffs to
allow the EAJA deadline to pass when the government
agreed to a consent order holding all fees issues in abeyance
while the parties tried to settle the fees’ claim, and then
subsequently pursued an untimeliness defense after the EAJA
deadline had passed. Pl. Reply at 12-13. Courts may excuse
late filing when the plaintiff was misled by their adversary’s
actions about the running of the filing period, see Bowden v.
United States, 106 F.3d 433, 438 (D.D.C. 1997), or induced
by their adversary’s misconduct into allowing the deadline to
pass. Irwin at 96, fn.4 (citing Glus v. Brooklyn Eastern
Terminal (adversary’ misrepresentation caused plaintiff to
allow filing deadline to lapse; Holmberg v. Armbrecht, 327
U.S. 392 (1946) (same)).
Plaintiffs here were not induced or misled by
defendant’s conduct. Both the pleadings before me and the
testimony presented at the hearing indicate that the parties
mutually agreed to hold all fees’ issues in abeyance pending
settlement discussion. The parties did so without ever
discussing the EAJA deadline. T. at 29, In. 7-9; T. at 58, In.
2. Further, the government at no time represented to
plaintiffs that the EAJA deadline would be waived. Indeed,
government attorney Markowitz testified that he not even
aware of the EAJA deadline. T. at 70, In. 10-11. Given that
the government’s attorney was unaware of the EAJA
53a
deadline when he agreed with plaintiffs’ attorney to hold
fees’ issues in abeyance, and made no representations
whatsoever as to EAJA, I cannot reach the conclusion that
defendants somehow induced or lulled plaintiffs into missing
the deadline.
Furthermore, while Markowitz’s successor,
Quinlivan, testified that he was familiar with EAJA and its
filing deadlines, T. at 80, he also testified that he did not
focus on the relationship between the parties’ October 8,
1999 consent order and the applicable EAJA deadline until
early January 2000. T. at 87, In. 18-25. Had Quinlivan been
simultaneously aware of the consent agreement and the
approaching EAJA deadline, plaintiffs may have a case for
misconduct or a misleading of plaintiffs into missing the
deadline, because this would show that the government
allowed the deadline to pass knowing that the parties agreed
to hold all issues with respect to fees in abeyance while they
tried to settle the matter. However, plaintiffs offered no
evidence to refute Quinlivan’s testimony, or to suggest that
Quinlivan was aware of the consent agreement between the
Parties prior to the time the EAJA deadline passed.
Therefore, on the evidence before me, I cannot agree with
plaintiffs’ assertion that the government misled plaintiffs
into missing the EAJA deadline.
Plaintiffs also contend that equitable tolling is
appropriate here because they reasonably relied on the advice
of a govemment official. Plaintiff's Reply in Support of
Their Renewed Motion for Attorneys’ Fees and Expenses at
4. In support of this argument, plaintiffs cite to Jarrell v.
United States Postal Service, 753 F2d 1088 (D.C. Cir. 1985),
which held that a filing deadline may be excused where a pro
se claimant failed to contact an EEO counselor in a timely
manner because the claimant relied on the assurances of an
EEO officer that the officer was attempting to have certain
54a
information expunged from the claimant’s records. Id. at
1092. Plaintiffs’ case, however, is readily distinguishable.
Unlike the claimant in Jarrell, plaintiffs here were not
proceeding pro se, but were instead represented in the fees’
negotiations by a nationally-renowned legal organization, the
ACLU. Significantly, plaintiffs were represented by the
ACLU when plaintiffs and the government jointly agreed to
hold all fees issues in abeyance. The ACLU continued to
try to negotiate a settlement on behalf of the plaintiffs
throughout the relevant period. In contrast with the
claimant in Jarrell, the plaintiffs here, represented at all
times by counsel, cannot claim their lateness in filing was
justifiable. The ACLU has a distinguished history of
engaging in the most significant civil mghts and civil
liberties litigation in American history. See
www.aclu.org/library/Freedomls. Why.pdf. It routinely
engages in litigation against the United States government,
and its attorneys should have known, or made themselves
aware, of the appropriate filing deadlines under EAJA,
irrespective of any agreement entered into by the ACLU and
the’government attorneys. Cf. Battle v. Rubin, 121 F.
Supp.2d 4, 9 (D.D.C. 2000). The Supreme Court has
“generally been much less forgiving in receiving late filings
where claimant failed to exercise due diligence in preserving
his legal rights.” Irwin, 498 U.S. at 96.
In sum, I conclude that the circumstances of this case
do not warrant equitable tolling. I reach this result with some
regret; disposition on the merits is always preferable to a
procedural default. Nevertheless, if one construes Boyd’s
equivocal testimony, see n. 4 supra, in ACLU’s favor, its
best case is that its attorney (Boyd) and the government’s
attorney (Markowtiz) were mutually ignorant of a
jurisdictional deadline when they agreed to postpone Judge
Roberts’s consideration of the a petition pending the parties’
55a
attempt to negotiate fees. At the risk of patronizing them,
one has to say that those lawyers ought to know that
deadlines, inexorable and sometimes devastating to their
clients’ interests, are a litigating lawyer’s life and she ignores
them at her peril. To excuse the ACLU’s failure to learn of
the EAJA deadline because government’s counsel was
equally ignorant of it is unprecedented, unsanctioned by any
legal authority, and a contortion of the history and purpose of
the concept of “equitable tolling.” Mutual ignorance of a
deadline by the government and its opponent cannot invoke a
principle designed to prevent government sharp dealing and
to permit justified reliance on the statements of government
officials which could lead a reasonable person to believe that
a deadline is being waived or does not apply until another
event occurs.
—d
It must also not be forgotten that EAJA is a waiver of
sovereign immunity which must be construed strictly in favor
of the sovereign. In re Sealed Case, 2001 WL 739819 * 4
(D.C. Cir. July 3, 2001). To excuse the ACLU’s failure to
meet a jurisdictional deadline because its attorneys were as
ignorant of it as the government is to violate that principle in
the most obvious way. It would be hard to imagine a more
generous construction of that waiver of sovereign immunity
than to waive it because a lawyer was ignorant of it.
CONCLUSION
Accordingly, this court will deny plaintiffs’ Renewed
Motion for Attorneys’ Fees as to the United States. An
Order will be issued accompanying this Memorandum
Opinion which will deny plaintiffs’ motion for fees against
the United States.
The ACLU also seeks fees against defendant D.C.
Board of Elections. It is the ACLU’s position that the United
States and the D.C. Board share joint and several liability for
56a
“expenses and for fees up to the amount compensable under
EAJA”. Plaintiffs’ Motion for Attorneys’ Fees and Expenses
(“Pl. Mot.) at 23. As plaintiffs state: “Here, the shared
liability should apply to plaintiffs’ expenses and to the
amount of fees awarded under EAJA. The D.C. defendants
should be solely liable for any amount of fees awarded under
§ 1988 that exceeds the amount awarded under EAJA.” PI.
Mot. at 23-24. Obviously, my determination today denying
any award of fees against the United States may substantially
impact plaitiffs’ position on fees vis-a-vis the D.C. Board.
Therefore, in fairness to the parties, I will grant the ACLU
and the D.C. Board the opportunity to address the validity of
any recovery of fees against the D.C. Board in light of my
determination. Accordingly, I will permit the ACLU to file,
within fourteen (14) days of the date of this Order, a
statement which addresses whether, in light of the
determination denying fees as to the United States, an award
of fees against the D.C. Board is valid. The D.C. Board
shall have fourteen (14) days thereafter to respond, and the
ACLU seven (7) days thereafter to file a reply.
/s/ John M. Facciola
John M. Facciola
United States
Magistrate Judge
57a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 98-2634
WAYNE TURNER, ET AL.
V.
D.C. BOARD OF ELECTIONS AND ETHICS
Before: FACCIOLA,
United States Magistrate Judge.
(Filed March 21, 2001)
MEMORANDUM OPINION AND ORDER
FACCIOLA, United States Magistrate Judge.
Plaintiffs seek attorneys fees against the
District of Columbia Board of Elections and Ethics (“the
Board”) and the United States. . Before I can resolve the
merits of plaintiffs’ fee petition, I must address several
outstanding issues.
A. Award of Fees Against DC Board of Elections
Plaintiffs assert fees against the Board pursuant to 42
U.S.C.A. § 1988 (1998). Section 1988 reads in relevant part:
In any action or proceeding to enforce a
provision of sections 1981, 1981a, 1982,
1983, 1985, and 1986 of this title, title LX
of Public Law 92-318 [20 U.S.C.A. § 1681
58a
et seq.], the Religious Freedom
Restoration Act of 1993 [42 U.S.C.A. §
2000bb et seq.], the Religious Land Use
and Institutionalized Persons Act of 2000
[42 U.S.C.A. § 2000cc et seq.], title VI of
the Civil Rights Act of 1964 [42 U.S.C.A.
§ 2000d et seq.], or section 13981 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.A. § 1988(b)(1998).
As the plain language of Section 1988 indicates,
plaintiffs are only entitled to fees in an “action” specifically
enumerated in Section 1988. While plaintiffs in their petition
refer offhandedly to this case as a Section 1983 case,! I can
find no indication, either in the pleadings in this case or in
the opinion rendered by Judge Roberts, indicating that this
matter was “... [an] action... to enforce a provision of
section(s]... 1983.” Plaintiffs’ onginal and amended
complaint state causes of action under the First and Fifth
Amendments (see Plaintiffs’ Amended Complaint at 7).
Plaintiffs Motion for Summary Judgment challenges the
Barr Amendment on First Amendment grounds. Neither the
complaint nor the motion for summary judgment therefore
specifically identify the cause of action as an action under
one of the statutes enumerated in Section 1988.
! Plaintiffs state: “When, in cases such as this one, plaintiffs obtain relief
on civil rights claims under 42 U.S.C. § 1983, the court must award them
attorneys’ fees pursuant to 42 U.S.C. § 1988 unless special circumstances
would render the award unjust.” (See Pls.” Mtn. Fees at 5) (emphasis
added).
59a
I cannot reach the merits of plaintiffs’ Section 1988
claim without first addressing the threshold issue of whether
the case before me presents a cause of action under Section
1983, or any of the other statutes enumerated in Section
1988. I therefore will order that plaintiffs file a supplemental
statement indicating whether the matter before me in fact
States a cause of action under any of the statutes enumerated
in Section 1988. The Board shall have an opportunity to
respond to plaintiffs’ statement. Only after parties have
briefed this issue can I reach the merits of plaintiff's petition
insofar as it seeks fees against the Board.
B. Award of Fees Against the United States
Plaintiffs also assert a claim of attorneys’ fees against
the United States pursuant to the Equal Access to Justice Act
("EAJA”), 42 US.C.A. § 2412(d)(1)(A) (1998). EAJA
provides in relevant part:
Except as otherwise provided by statute, a
court shall award to a prevailing party other
than the United States fees and other expenses
. . Incurred by that party in any civil action
(other than cases sounding in tort) brought by
or against the United States in any court
having jurisdiction of that action, unless the
court finds that the position of the United
States was substantially justified or that
special circumstances make an award unjust.
§ 2412(d)(1)(A).
The United States raises two jurisdictional hurdles to
plaintiffs’ claim. First, they argue that plaintiffs’ fee petition
is untimely and therefore the court lacks subject matter
60a
jurisdiction over the petition. (United States’ Opp. at 5-10).
Second, they argue that because the United States was not
named as a defendant in this case, but rather intervened to
defend the constitutionality of the Barr Amendment, the plain
language of § 2412(d)(1)(A) of EAJA and 28 U.S.C.A. §
2403(a)(1998), the statute authorizing intervention, provide
no basis for an award of fees against the United States. I will
first consider the United States’ positional claim, and then
address its Section 2403(a) and timing issues.
1. No Cause of Action Against the United States
The United States argues that Section 2412(d)(1)(A)
provides for fees and other expenses incurred in a civil action
“brought... against the United States” and this suit is not an
action against the United States because the United States
was never named as a defendant. (U.S. Opp. at 10-11)
(emphasis added). Rather, the United States argues, it was
merely an intervenor and therefore the plain language of
EAJA provides no authority for an award of fees against the
Untied States. Id.
Emphasizing its status as intervenor rather than
defendant for the purposes of concluding that plaintiffs’
action is not an action against the United States is hair-
splitting. Fed. R. Civ. P. 24(c) requires a party desiring to
intervene to file a pleading “setting forth the claim or defense
for which intervention is sought.” The rule obviously
requires that the intervenor intervene as a party; a motion
which seeks intervention solely to stay an action is
insufficient. Further, the intervening party must file to
intervene as a party plaintiff of defendant. Kamerman v.
Steinberg, 681 F. Supp. 206,211 (S.D.N.Y. 1988). See also
Williams & Humbert Ltd. v. W.& H. Trade Marks (Jersey)
Ltd., 840 F.2d 72 , 75 (D.C. Cir. 1988) (intervening party
6la
must tender legally sufficient claim or defense): Rhode Island
Federation of Teachers, AFL-CIO vy. Norberg, 630 F.2d 850,
854-55 (1" Cir. 1980).
Moreover, once intervention is permitted, the
intervening plaintiff or defendant is a party to the lawsuit,
bound by the judgment, and entitled to the same rights as the
Original Parties. Alvarado v. J.C. Pennev Co., 997 F.2d 803,
805 (10 Cir. 1993). Thus, from the moment it intervened to
the end of the lawsuit, the United States was a party
defendant to this action just as if it had been originally sued.
From the moment it intervened as of right and opposed the
relief plaintiff sought, the action plaintiff brought was as
“against the United States” as if plaintiff had originally sued
the United States. To argue otherwise would ignore the
reality that the United States entered this lawsuit as a party
defendant and had that status from beginning to end. EAJA
therefore expressly authorizes the fees plaintiffs seek.
Furthermore, EAJA was enacted to remove financial
disincentives for persons “defending against unjustified
governmental action” and therefore “deter the unreasonable
exercise of Government authority.” Ardestani v. I.N.S 502
U.S. 129, 138 (1991) (quoting Congressional Findings and
Purposes, 94 Stat. 2325, note following 5 U.S.C. § 504;
H.R.Rep. No. 96-1418, pp. 10, 12 (1980); S.Rep. No. 96-
253. supra, at 5; Commissioner, INS v. Jean, 496 U.S. 154,
163. (10 S.Ct. 2316. 2321, 110 L.Ed.2d 134 (1990)).
Drawing a distinction in the interpretation of EAJA between
the United States as original defendant and as intervening
defendant is to draw a distinction that defeats EAJA’s
purposes.
2. Scope of United States’ Liability
62a
The United States also argues that 28 U.S.C.A. §
2403(a)( 1994) limits the government’s liability to court costs
only. Section 2403(a) provides:
In any action, suit or proceeding in a court of
the United States to which the United States
or any agency, officer or employee thereof is
not a party, wherein the constitutionality of
any Act of Congress affecting the public
interest is drawn in question, the court shall
certify such fact to the Attorney General, and
shall permit the United States to intervene for
presentation of evidence, if evidence is
otherwise admissible in the case, and for
argument on the question of constitutionality.
The United States shall, subject to the
applicable provisions of law, have all the
rights of a party and be subject to all liabilities
of a party as to court costs to the extent
necessary for a proper presentation of the facts
and law relating to the question of
constitutionality. (emphasis added)
The United States argues that the language of section
2403(a) necessarily excludes an award of attorneys’ fees
under EAJA because the principle of expressio unius est
exclusio alterius (the mention of one thing implies the
exclusion of another thing) controls here. (U.S. Opp. at 12).
The United States reads the phrase “subject to all liabilities of
a party as to court costs” in 2403(a) as limiting the
government’s liability here to court costs, and necessarily
excluding the award of attorneys fees.
Even assuming that the phrase “court costs” can be
read narrowly to exclude attorneys’ fees, I cannot view
63a
Section 2403(a) in a vacuum. Subsection (a) of Section 2403
was enacted when the law was initially passed, on June 25,
1948. 28 U.S.C. § 2403(a), ch. 646, 62 stat. 97] (1948). By
contrast, the subsection of EAJA related to fees, subsection
(d), was not enacted unti! 1980 by § 204(a) of Pub. L. 96-
481, effective October 1, 1981. 28 U.S.C. § 2412 (Supp. IV
1980). <A brief review of the timing of the relevant
provisions shows that the pertinent portion of EAJA was
enacted subsequent to the intervenor statute that the
government suggests limits its liability to costs. At the time
the intervenor statute was passed, therefore, Congress did not
expressly provide for an award of attorneys’ fees against the
United States. However, in passing EAJA, Congress
specifically authorized such a waiver of sovereign immunity.
It is an accepted principle of Statutory interpretation
that if two statutes relate to the same purpose or subject
matter, they should be construed together. See United States
v. Freeman, 44 U.S. 556, 564-65 (1845); United States v.
Borden Co., 308 U.S. 188, 198 ( 1939). Further, when two
Statutes are capable of co-existence, it is the duty of the
courts to regard each as effective, absent express
congressional intent to the contrary. Morton v. Mancari, 417
U.S. 535, 551 (1974). It is only where provisions in the two
acts are “irreconcilable” that the later act constitutes an
implied repeal of the earlier one. See Kremer v. Chemical
Constr. Corp., 456 U.S. 461, 468 (1982). While the United
States is certainly not arguing that EAJA trumps Section
2403(a), the underlying principle of statutory construction at
work is useful to the analysis here.
Section 2403(a) and 2412(d)(1)(A) are not
“irreconcilable” and should be construed together. Both
Statutes relate to the same subject, i.e., the United States’
liability in an action in which the United States is a party. In
placing the two statutes in their historical context, a fair
64a
reading of section 2412(d)(1)(A) is to view it as a supplement
to Section 2403(a), expanding the United States’ liability to
included fees and expenses. As discussed above, if the
purpose of EAJA is to deter unjustified government activity
and encourage private challenges, a reading of Section 2403
as limiting governmental liability to court costs in certain
situations undercuts EAJA’s broad intent. Therefore, reading
each statute side by side, and giving effect to the purpose of
EAJA, I find that the intervenor statute presents no
jurisdictional hurdle to plaintiff's petition for fees.
3. Timeliness of Plaintiffs Fee Petition
As for the United States first procedural argument,
namely, that plaintiffs’ fee petition is untimely, the court is
unable to resolve the issue on the papers submitted because
they present a dispute of material fact.
The United States argues that plaintiffs failed to file
their fee application within the requisite thirty days mandated
by EAJA.2 (U.S. Opp. at 5) Plaintiffs assert equitable tolling,
claiming the United States induced plaintiffs to allow the
deadline to pass by “consenting to an extension... [and]
prolonging settlement negotiations through repeated requests
for delay while a new attorney was assigned to the case...”
(Pl. Reply at 12). Plaintiffs state that the day after the
expiration of the period for the federal government to file a
notice of appeal, they contacted the Department of Justice
attorney then assigned to the case who requested a deferral of
fee discussions because he was leaving the Department. (Id.
2 “A party seeking ai award of fees and other expenses shall, within 30
days of final judgment in the action, submit to the court an application for
fees and other expenses...” § 2412(d)(1)(B).
65a
at 13). According to plaintiffs, the United States continued
to delay informing plaintiffs when the case would be
assigned to a new attorney, and only “after inducing plaintiffs
to allow the filing deadline to pass” did the United States
name a new attorney and agree to settlement discussions.
(Id.)
The specificity and timing of these events is unclear
and undeveloped, and I cannot resolve this issue without
further probing the factual context leading up to plaintiffs’
filing their fee petition. Specifically, what events do
plaintiffs allege, from the time of Judge Roberts’ order
Staying the proceedings regarding fees to the time of
plaintiffs’ filing of its fee petition, Support their claim of
equitable tolling? While plaintiffs’ declarations discuss the
basis for their defense in some detail, I am uncertain, for
example, when exactly plaintiffs learned of the identify of the
new attorney. I am also unclear as to what evidence, if any,
defendant claims refutes plaintiffs’ charge of inducement. I
will therefore hold an evidentiary hearing on this discrete
issue. I expect the parties to present the testimony of all
witnesses who have information bearing on these questions
and any other questions related to the timeliness of the fee
petition that the parties think pertinent.
This order is placing new obligations upon plaintiffs
who may well be entitled to claim additional attorney fees for
the prosecution of this portion of the case. The defendants
are entitled to an opportunity to rebut any such showing.
Additionally, my resolution of the issues may radically
transform what fees I will permit.
I will therefore, in my discretion, deny plaintiffs’
Motion for Attorneys Fees [#43] without prejudice to refile it
once the hearing on timeliness is held and I once resolve,
based on plaintiffs’ further submission on the issue, whether
66a
plaintiffs can seek recovery of any fees from the Board. It is
further
ORDERED that plaintiffs shall file a supplemental
statement 14 days from the date of this order indicating
whether this case in fact states a cause of action under any of
the statutes enumerate in 42 U.S.C. § 1988. The Board shall
have 11 days thereafter to file its opposition. Plaintiffs’ reply
shall be due 5 days thereafter. It is further
ORDERED that plaintiff and the United States shall
appear before me on May 16, 2001, at 9:30 am for an
evidentiary hearing on the discrete issue of the timeliness of
plaintiffs’ fee petition against the United States.
SO ORDERED.
/s/ John M. Facciola
John M. Facciola
United States
Magistrate Judge
67a
TITLE 42. THE PUBLIC HEALTH AND WELFARE
CHAPTER 21. CIVIL RIGHTS
GENERALLY
42 USC § 1988 (2004)
§ 1988, Proceedings in Vindication of Civil Rights.
(a) Applicability of Statutory and common law. The
jurisdiction in civil and criminal matters conferred on the
district and circuit courts [district courts] by the provisions of
this Title, and of Title “CIVIL RIGHTS,” and of Title
“CRIMES,” for the protection of all persons in the United
States in their civil rights, and for their vindication, shall be
exercised and enforced in conformity with the '!aws of the
United States, so far as such laws are suitable to carry the
same into effect; but in all cases where they are not adapted
to the object, or are deficient in the provisions necessary to
furnish suitable remedies and punish offenses against law,
the common law, as modified and changed by the
constitution and statutes of the State wherein the court having
jurisdiction of such civil or criminal Cause is held, so far as
the same is not inconsistent with the Constitution and laws of
the United States, shall be extended to and govern the said
courts in the trial and disposition of the cause, and, if it is of
a criminal nature, in the infliction of punishment on the party
found guilty.
(b) Attorney’s fees. In any action or proceeding to enforce a
provision of sections 1977, 1977A, 1978, 1979, 1980, and
1981 of the Revised Statutes [42 USCS §§ 1981-1983, 1985,
1986], title IX of Public Law 92-318 [20 USCS §§ 1681 et
seq.], the Religious Freedom Restoration Act of 1993, the
Religious Land Use and Institutionalized Persons Act of
2000, title VI of the Civil Rights Act of 1964 [42 USCS §§
2000d et seq.], or section 40302 of the Violence Against
68a
Women Act of 1994, 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, except that in
any action brought against a judicial officer for an act or
omission taken in such officer’s judicial capacity such officer
shall not be held liable for any costs, including attorney’s
fees, unless such action was clearly in excess of such
officer’s jurisdiction.
(c) Expert fees. In awarding an attorney’s fee under
subsection (b) in any action or proceeding to enforce a
provision of sections 1977 or 1977A of the Revised Statutes
[42 USCS §§ 1981 or 1981a], the court, in its discretion, may
include expert fees as part of the attorney’s fee.
69a
TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE
PART VI. PARTICULAR PROCEEDINGS
CHAPTER 161. UNITED STATES AS PARTY
GENERALLY
28 USC § 2412 (2004)
§ 2412. Costs and fees
(a)(1) Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this
title, but not including the fees and expenses of attorneys,
may be awarded to the prevailing party in any civil action
brought by or against the United States or any agency or any
official of the United States acting in his or her official
capacity in any court having jurisdiction of such action. A
judgment for costs when taxed against the United States
shall, in an amount established by statute, court rule, or order,
be limited to reimbursing in whole or in part the prevailing
party for the costs incurred by such party in the litigation.
(2) A judgment for costs, when awarded in favor of
the United States in an action brought by the United States,
may include an amount equal to the filing fee prescribed
under section 1914(a) of this title. The preceding sentence
shall not be construed as requiring the United States to pay
any filing fee.
(b) Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the
costs which may be awarded pursuant to subsection (a), to
the »revailing party in any civil action brought by or against
t's United States or any agency or any Official of the United
States acting in his or her official Capacity in any court
having jurisdiction of such action. The United States shall be
liable for such fees and expenses to the same extent that any
other party would be liable under the common law or under
70a
the terms of any statute which specifically provides for such
an award. 3%
(c) (1) Any judgment against the United States or any agency
and any official of the United States acting in his or her
official capacity for costs pursuant to subsection (a) shall be
paid as provided in sections 2414 and 2517 of this title and
shall be in addition to any relief provided in the judgment.
(2) Any judgment against the United States or any
agency and any official of the United States acting in his or
her official capacity for fees and expenses of attorneys
pursuant to subsection (b) shall be paid as provided in
sections 2414 and 2517 of this title, except that if the basis
for the award is a finding that the United States acted in bad
faith, then the award shall be paid by any agency found to
have acted in bad faith and shall be in addition to any relief
provided in the judgment.
(d) (1) (A) Except as otherwise specifically provided by
statute, a court shall award to a prevailing party other than
the United States fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred by that
party in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or
that special circumstances make an award unjust.
(B) A party seeking an award of fees and other
expenses shall, within thirty days of final judgment in the
action, submit to the court an application for fees and other
expenses which shows that the party is a prevailing party and
is eligible to receive an award under this subsection, and the
amount sought, including an itemized statement from any
attorney or expert witness representing or appearing in behalf
of the par‘y stating the actual time expended and the rate at
Tla
which fees and other expenses were computed. The party
shall also allege that the position of the United States was not
substantially justified. Whether or not the position of the
United States was substantially justified shall be determined
on the basis of the record (including the record with respect
to the action or failure to act by the agency upon which the
civil action is based) which is made in the civil action for
which fees and other expenses are sought.
(C) The court, in its discretion, may reduce the
amount to be awarded pursuant to this subsection, or deny an
award, to the extent that the prevailing party during the
course of the proceedings engaged in conduct which unduly
and unreasonably protracted the final resolution of the matter
in controversy.
(D) If, in a civil action brought by the United States
or a proceeding for judicial review of an adversary
adjudication described in section 504(a)(4) of title 5, the
demand by the United States is substantially in excess of the
judgment finally obtained by the United States and is
unreasonable when compared with such judgment, under the
facts and circumstances of the case, the court shall award to
the party the fees and other expenses related to defending
against the excessive demand, unless the party has committed
a willful violation of law or otherwise acted in bad faith, or
special circumstances make an award unjust. Fees and
expenses awarded under this subparagraph shall be paid only
as a consequence of appropriations provided in advance.
(2) For the purposes of this subsection-
(A) “fees and other expenses” includes the
reasonable expenses of expert witnesses, the reasonable cost
of any study, analysis, engineering report, test, or project
which is found by the court to be necessary for the
preparation of the party’s case, and reasonable attorney fees
(The amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of
the services furnished, except that (i) no expert witness shall
72a
be compensated at a rate in excess of the highest rate of
compensation for expert witnesses paid by the United States;
and (ii) attorney fees shall not be awarded in excess of $ 125
per hour unless the court determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.);
(B) “party” means (i) an individual whose net
worth did not exceed $ 2,000,000 at the time the civil action
was filed, or (ii) any owner of an unincorporated business, or
any partnership, corporation, association, unit of local
government, or organization, the net worth of which did not
exceed $ 7,000,000 at the time the civil action was filed, and
which had not more than 500 employees at the time the civil
action was filed; except that an organization described in
section 501(c)(3) of the Internal Revenue Code of 1954 (26
U.S.C. 501(c)(3)) exempt from taxation under section 501(a)
of such Code, or a cooperative association as defined in
section 15(a) of the Agricultural Marketing Act (12 U.S.C.
1141)j(a)), may be a party regardless of the net worth of such
organization or cooperative association or for purposes of
subsection (d)(1)(D), a small entity as defined in section 601
of title 5;
(C) “United States” includes any agency and any
official of the United States acting in his or her official
capacity; F
(D) “position of the United States” means, in
addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which
the civil action is based; except that fees and expenses may
not be awarded to a party for any portion of the litigation in
which the party has unreasonably protracted the proceedings;
(E) “civil action brought by or against the United
States” includes an appeal by a party, other than the United
States, from a decision of a contracting officer rendered
pursuant to a disputes clause in a contract with the
73a
Government or pursuant to the Contract Disputes Act of
1978;
(F) “court” includes the United States Claims
Court [United States Court of Federal Claizns] and the United
States Court of Appeals for Veterans Claims;
(G) “final judgment” means a judgment that is
final and not appealable, and includes an order of settlement;
(H) “prevailing party”, in the case of eminent
domain proceedings, means a party who obtains a final
judgment (other than by settlement), exclusive of interest, the
amount of which is at least as close to the highest valuation
of the property involved that is attested to at trial on behalf of
the property owner as it is to the highest valuation of the
property involved that is attested to at trial on behalf of the
Government; and
(I) “demand” means the express demand of the
United States which led to the adversary adjudication, but
shall not include a recitation of the maximum statutory
penalty (i) in the complaint, or (ii) elsewhere when
accompanied by an express demand for a lesser amount. (3)
In awarding fees and other expenses under this subsection to
a prevailing party in any action for judicial review of an
adversary adjudication, as defined in subsection (b)(1)(C) of
section 504 of title 5, United States Code, or an adversary
adjudication subject to the Contract Disputes Act of 1978,
the court shall include in that award fees and other expenses
to the same extent authorized in subsection (a) of such
section, unless the court finds that during such adversary
adjudication the position of the United States was
substantially justified, or that special circumstances make an
award unjust.
(4) Fees and other expenses awarded under this
subsection to a party shall be paid by any agency over which
the party prevails from any funds made available to the
agency by appropriation or otherwise.
74a
(e) The provisions of this section shall not apply to any costs,
fees,
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.