On Appeal from the United States District Court for the District of New Jersey, D.C. Civil Nos. 82-0297, 82-0388.
Sloviter, Greenberg and Cowen, Circuit Judges.
This is another, and unfortunately not the final, episode of a litigation saga that began in 1982 with the institution of a suit to challenge the New Jersey congressional reapportionment law passed that year. In this second appeal from the award of attorneys' fees to the prevailing plaintiffs we must resolve the parties' diametrically opposing interpretations of our earlier instructions on the compensability of attorney time spent in developing the remedial reapportionment proposal ultimately adopted. We need review the earlier phases of this case only briefly.
Following the 1980 census results which required New Jersey to reduce its federal congressional districts from 15 to 14, the New Jersey Legislature, which was controlled by the Democrats, enacted a congressional redistricting plan which was challenged by seven Republican members of Congress and seven residents of their districts (referred to throughout as "Plaintiffs") on the ground that the deviation range among the districts violated art. 1, § 2 of the United States Constitution. The suit named New Jersey's Governor, Attorney General, and Secretary of State as defendants. The New Jersey Senate and General Assembly, the incumbent New Jersey Democratic members of Congress, and other concerned citizens (hereafter referred to collectively as the "Legislature") intervened as defendants and maintained the defense of the suit.
A three-judge district court held that the population deviation in the plan was not unavoidable despite a good-faith effort to achieve absolute equality, declared the plan to be unconstitutional under the standard enunciated in Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969), and enjoined the defendants from conducting elections under it. Daggett v. Kimmelman, 535 F. Supp. 978 (D.N.J. 1982). The United States Supreme Court affirmed, holding that the district court had correctly applied the Kirkpatrick test to find that the plan was not a good-faith effort to achieve population equality. Karcher v. Daggett, 462 U.S. 725, 744, 77 L. Ed. 2d 133, 103 S. Ct. 2653 (1983).
After the New Jersey Legislature failed to meet a court-imposed deadline of February 1984 for enactment of another redistricting plan, the three-judge district court held a hearing to consider reapportionment proposals. The court chose the reapportionment plan submitted by Plaintiffs on the grounds that this plan achieved the lowest population deviation and the most compact districts of any plan submitted. Daggett v. Kimmelman, 580 F. Supp. 1259, 1264 (D.N.J. 1984). The Legislature again appealed to the Supreme Court which affirmed the district court's judgment, Karcher v. Daggett, 467 U.S. 1222, 81 L. Ed. 2d 869, 104 S. Ct. 2672 (1984) (mem.).
As prevailing parties, Plaintiffs requested attorneys' fees under 42 U.S.C. § 1988 in the amount of $577,787. The district court awarded Plaintiffs $253,461, after reducing the lodestar by 10% to reflect unnecessary duplication in the hours billed by Plaintiffs' attorneys and by an additional 20% to reflect use of partners only to staff all aspects of the case, and after reducing the lead partner's hourly rate from $300 to $250. Daggett v. Kimmelman, 617 F. Supp. 1269 (D.N.J. 1985).
On appeal, this court upheld the district court's fee for the merits phase of the litigation except for its 20% reduction for staffing the case with partners only. As to that reduction, we held that, given the "great constitutional import" of the case, the firm's staffing decisions seemed "more wise than top-heavy." Daggett v. Kimmelman, 811 F.2d 793, 798-99 (3d Cir. 1987). We remanded the case to the district court for further development of the record on the attorneys' fees allowable for the remedy phase of the proceedings*fn1 for which Plaintiffs listed 773 hours of attorney time, 298 of which had been spent in conferences with clients and other members of Congress from New Jersey.
The dispute between the parties stems from the parties' opposing views of what was required on remand. The Legislature argues that Plaintiffs were obliged to prove the amount of time spent obtaining mathematical exactitude for the districting ultimately adopted; because Plaintiffs' counsel spent at most several days on such mathematical exactitude, they are limited to reimbursement in that amount. Plaintiffs, the successful Republican members of Congress and their constituents, argue that they were to exclude only those hours devoted "solely" to obtaining the most favorable political result; because they filed affidavits stating there was no such time, they were entitled to recovery for the hours originally listed. The district court agreed with Plaintiffs' interpretation, and awarded Plaintiffs $146,449 in fees, which figure reflected a 10% deduction for duplicative hours and a reduction in the billing rate of Plaintiffs' lead attorney as previously approved by this court. In making its award, the court adopted Plaintiffs' position that they should be permitted to recover fees for all attorney time spent on the remedy phase of the case as long as the time was not spent "solely" on political matters.
The starting point in resolving this dispute over the interpretation of this court's remand instructions must be the language used, fairly viewed in the context of the decision. After ruling on the fees relating to the merits phase, we discussed the fees for the remedy phase. We rejected the Legislature's contention that Plaintiffs are not entitled to any compensation for the remedy phase, noting that "if the appellees had submitted a reapportionment plan that had been adopted by the district court, their argument might be plausible, for under such circumstances the appellants would not be the 'prevailing party' on the remedy issue." 811 F.2d at 800. Because the Legislature's plan was rejected by the district court, ...