Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil Action No. 88-09144)
Present: Hutchinson, Alito and Roth, Circuit Judges
HUTCHINSON, Circuit Judge.
Michael and Harriese Yaron and Marcus and Carol Kline (collectively "plaintiffs") appeal an order of the United States District Court for the Eastern District of Pennsylvania ordering them to pay $29,326.96 in attorney's fees pursuant to 42 U.S.C.A. § 1988 (West 1981) that the Township of Northampton, Nancy Opalka, Armand Carriere and Barry Vesotsky (collectively "defendants") incurred at trial and on appeal for their successful defense of a civil-rights action brought by plaintiffs on behalf of their respective minor sons. Plaintiffs ask us to reverse that part of the district court's order awarding attorney's fees for legal services rendered to defendants on plaintiffs' earlier appeal of the district court's order granting summary judgment to defendants. This Court rejected defendants' application for attorney's fees for that appeal. Plaintiffs contend this order was dispositive of that question and therefore the district court erred when it included reimbursement of $2,500.00 for services on that appeal in its later order awarding defendants' attorney's fees. Plaintiffs also seek to remand this case to the district court so that it may consider apportioning the payment of the remaining attorney's fees awarded among plaintiffs and their counsel in the underlying civil rights action.
Controlling precedent holds this Court can decide appellate attorney's fees applications under section 1988. See, e.g., Vasquez v. Fleming, 617 F.2d 334, 336 (3d Cir. 1980). Accordingly, our express rejection of defendants' application for costs and attorney's fees on appeal finally disposed of that issue and precluded the district court from including any amount for appellate services in its fee order. We will thus vacate the district court's award of fees attributable to legal services on the prior appeal. We will, however, reject plaintiffs' request to remand this case to the district court with instructions to consider apportionment of the fees between plaintiffs and their former counsel.
Plaintiffs filed suit against the defendants alleging various civil-rights violations under 42 U.S.C.A. § 1983 (West 1981) in connection with the "cutting" of Jarred Yaron and Mark Kline from the Northampton Basketball Program's travelling team of ten-year olds.*fn1 They asserted a host of violations of their constitutional rights and various state-law torts. Plaintiffs also asked for a declaratory injunction against further funding of the team with tax monies.
Plaintiffs sought a temporary restraining order which the district court granted in part by ordering that Jarred was to be given a supplemental tryout. Jarred was not offered a place on the team after the supplemental tryout. Plaintiffs then moved for a preliminary injunction. The district court denied their motion because they "had failed to show a substantial likelihood of success on the merits." Appendix at 40-41. On August 29, 1989, the district court granted defendants' motions for summary judgment on all claims. Plaintiffs timely appealed on the merits.
During the pendency of the appeal, defendants moved in the district court for $72,273.37 in attorney's fees for trial services rendered, pursuant to section 1988. The district court stayed action on that motion pending Disposition of the appeal on the merits.
After a panel of this Court affirmed the order of the district court granting defendants' summary judgment motions by judgment order, defendants moved in this Court for attorney's fees, again pursuant to section 1988, in the amount of $12,865.50 for services rendered in defending the appeal. They also filed a supplemental motion for attorney's fees for the same services on appeal in the amount of $14,168.50 with the district court.*fn2 On October 19, 1990 this Court denied the motion for attorney's fees for appellate services without explanation.
On July 18, 1991, the district court awarded defendants attorney's fees in the amount of $18,000.00. On July 31, 1991, the district court vacated its July 18 order and entered an amended order granting attorney's fees in the amount of $26,826.96 for services at trial and $2,500.00 for services on appeal.
Plaintiffs' counsel, Gary Green (Green) of the law firm Sidkoff, Pincus & Green, then withdrew from the action and plaintiffs' current counsel, ...