Appeal from the United States District Court for the District of Columbia (No. 98cv02634)
Before: Ginsburg, Chief Judge, and Rogers and Tatel,
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 court apportioned the requested § 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 (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 non-fractionable 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.
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, 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. Id. 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 join the statutory argument.
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 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 v. District of Columbia 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"). Id. 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. Id. 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. Finally, 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 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. Id. The magistrate again, however, in light of his culpability finding, awarded Turner only 10% of the fees-for-fees incurred against the Board. Id. 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 prealignment 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.
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 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, 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, 706 F.2d 336, 340 (D.C. Cir. 1983) (citations omitted), it has long been established that "[i]n computing the [§ 1988] fee, counsel for prevailing parties should be paid, as is traditional with ...