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Daggett v. Kimmelman

filed: February 12, 1987; As Amended February 26, 1987.

DAGGETT, GEORGE T., PLAINTIFF
v.
KIMMELMAN, IRWIN I., ETC., ET AL., DEFENDANTS; FORSYTHE, EDWIN B., ET AL., PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES V. KEAN, THOMAS H., ETC., ET AL., DEFENDANTS



On Appeal and Cross-Appeal from the United States District Court for the District of New Jersey, D.C. Civil Nos. 82-0297 & 82-0388.

Author: Higginbotham

Before WEIS and HIGGINBOTHAM, Circuit Judges, and RE,*fn* Chief Judge.

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This is an appeal and cross-appeal from a final judgment of the district court awarding attorneys' fees pursuant to 42 U.S.C. § 1988 (1982). The fee award in question follows a judicial determination, in litigation initiated by plaintiffs-appellants ("appellants"), who in 1982 were the seven Republican members of Congress from New Jersey and seven citizens who resided in the districts represented by those members, that the congressional reappointment plan adopted in 1982 by the New Jersey legislature was unconstitutional. The district court awarded appellants attorneys' fees in the amount of $253,461, to be assessed against defendants-intervenors-appellees ("appellees"), who are New Jersey state legislators.*fn1 Daggett v. Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985).

Since we will affirm the holdings of the district court on the other issues appealed,*fn2 it is necessary to deal only with the award of counsel fees. Appellants, the congressional plaintiffs, assert error in the district court's refusal to award the full amount of fees requested. Appellees argue in their cross-appeal that the fee award should be substantially reduced as to every phase of the litigation and that the fees claimed for time expended in the so-called remedy phase should be disallowed. For the reasons noted below, we will affirm, with one exception, the district court's award of counsel fees for the so-called pre-remedy phase. Because it is unclear whether the total number of hours during the so-called remedy phase for which counsel were compensated involved solely "good-faith effort[s] to achieve population equality," Karcher v. Daggett, 462 U.S. 725, 727, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983), or whether some of the time billed was spent obtaining favorable political results of the appellants, we will remand for further findings on this issue.

I. Facts and History

As a result of the 1980 decennial census, the New Jersey General Assembly was required to reduce, from 15 to 14, and thereby to reapportion, that state's federal congressional districts. Eventually, the legislature enacted Public Law 1982 c.1 (the "Feldman Plan"), a reapportionment scheme that was signed into law by the Governor of New Jersey on January 19, 1982. Thereafter, individuals including the incumbent Republican members of Congress from New Jersey filed suit in federal court. These plaintiffs sought a declaration that the Feldman Plan violated article I, section 2 of the United States Constitution,*fn3 the fourteenth amendment and 42 U.S.C. § 1983. Named as defendants were New Jersey Governor Kean, Attorney General Kimmelman, and Secretary of State Burgio. The 202d Session of the New Jersey General Assembly and the incumbent Democratic members of Congress from the State of New Jersey intervened in this suit to defend the constitutionality of the Feldman Plan.

After conducting a hearing, a three-judge district court, by a two-to-one vote, issued an opinion and order on March 3, 1982 declaring the Feldman Plan unconstitutional. Daggett v. Kimmelman, 535 F. Supp. 978 (D.N.J. 1982). It order enjoined the three state defendants from New Jersey's executive branch from conducting elections under the Feldman Plan. On application of the intervenors from the state legislature and from New Jersey's Democratic congressional delegation, however, Justice Brennan stayed the district court's order pending appeal to the Supreme court. Karcher v. Daggett, 455 U.S. 1303, 71 L. Ed. 2d 635, 102 S. Ct. 1298 (1982) (Brennan, Circuit Justice, in chambers). Appellants' motions to vacate this stay and to expedite the docketing of the state defendants' appeal from the district court order were denied, Karcher v. Daggett, 456 U.S. 901, 72 L. Ed. 2d 157, 102 S. Ct. 1745 (1982), and probable jurisdiction was noted, Karcher v. Daggett, 462 U.S. 725, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983).

When the New Jersey General Assembly subsequently failed to enact plan by February 3, 1984, the three-judge district court held a hearing on the question of further relief, and it unanimously adopted the redistricting plan submitted by appellants, which achieved the lower population deviation and most compact congressional districts. Daggett v. Kimmelman, 580 F. Supp. 1259 (D.N.J. 1984). The intervenors then presented Justice Brennan with another stay application. He referred this application to the entire Court and, on March 30, 1984, by a six-to-three vote, the application was denied. Karcher v. Daggett, 466 U.S. 910, 80 L. Ed. 2d 165, 104 S. Ct. 1691 (1984). A few days later the Court denied intervenors' motion to expedite consideration of their jurisdictional statement. Karcher v. Daggett, 466 U.S. 923, 80 L. Ed. 2d 177, 104 S. Ct. 1703 (1984). Subsequently, on June 4, 1984, the Supreme Court summarily affirmed the three-judge district panel's adoption of the redistricting plan submitted by plaintiffs; three justices dissented from this order, voting to note probable jurisdiction and set the case for oral argument. Karcher v. Daggett, 467 U.S. 1222, 81 L. Ed. 2d 869, 104 S. Ct. 2672 (1984) (mem.).

Pursuant to 42 U.S.C. § 1988 (1982), appellants on November 15, 1984, filed an application for an attorneys' fee award of nearly $600,000. The district court received extensive affidavits from all parties and heard oral argument on January 15, 1985 and July 30, 1985. The district court denied as moot the state defendants' motion to dismiss and considered the request for fees by appellants, the disclaimer of liability by appellees, and their challenge to the amount of fees requested. In determining the lodestar, the district court first reduced the number of hours billed by 10%. It then reduced the resulting, modified lodestar by an additional 20%. The district court also reduced Mr. Bernard Hellring's hourly rate from $300 to $250. While the original request was for $577,787.01, the final fee awarded by the district court was thus $253,461 (both figures include costs).

II. Pre-Remedy Phase Hours

We have carefully evaluated appellees' vigorous challenge to the appropriateness of the fee award. We find no fundamental flaws in the district court's fee award for counsel hours in the pre-remedy phase of this litigation.*fn4

Of the 1,886.40 hours counsel spent throughout this litigation, 1,004.62 were in the pre-remedy phase. Appellants were successful in an intensely contested case that explored, and thus helped to map, some of the more uncertain boundaries of our constitutional law. On the merits of this litigation, the district court panel divided two judges to one, and the Supreme Court split five justices to four. The district court found that the appellants' total number of counsel hours, as billed, for the pre-remedy phase was justified. However, it reduced the 1,886.40 hourly total by 10 percent per attorney. It thus determined that 1,697.76 attorney hours were "reasonably expended" and therefore ...


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