People Against Pol v. Pittsburgh

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-17-2008
People Against Pol v. Pittsburgh
Precedential or Non-Precedential: Precedential
Docket No. 06-4457
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PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-4457
PEOPLE AGAINST POLICE VIOLENCE;
THOMAS MERTON CENTER; NATIONAL
ASSOCIATION FOR THE ADVANCEMENT
OF COLORED PEOPLE, Pittsburgh Branch
v.
CITY OF PITTSBURGH
Appellant
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civil Action No. 03-cv-01649)
District Judge: Hon. Joy F. Conti
Argued December 11, 2007
BEFORE: RENDELL and STAPLETON, Circuit
Judges, and IRENAS,* District Judge
(Opinion Filed March 17, 2008 )
Michael J. Healey
Douglas B. McKechnie
Healey & Hornack
The Pennsylvanian - Suite C-2
1100 Liberty Avenue
Pittsburgh, PA 15222
Witold J. Walczak (Argued)
Sara H. Rise
American Civil Liberties Foundation of Pennsylvania
313 Atwood Street
Pittsburgh, PA 15213
Attorneys for Appellees
Yvonne S. Hilton (Argued)
Diego Correa
Michael E. Kennedy
Assistant City Solicitor
George R. Specter
Acting City Solicitor
City of Pittsburgh Department of Law
313 City-County Building
414 Grant Street
Pittsburgh, PA 15219
Attorneys for Appellant
2
*Hon. Joseph Irenas, Senior District Judge for the District of
New Jersey, sitting by designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
In this appeal we review a District Court’s order
awarding attorneys’ fees to plaintiffs pursuant to 42 U.S.C. §
1988(b). Plaintiffs brought this lawsuit to challenge the
constitutionality of the City of Pittsburgh’s (“City’s”) ordinance
regulating expressive activities in public forums. Plaintiffs’
complaint sought declaratory and permanent injunctive relief;
plaintiffs also filed a motion for interim injunctive relief. The
District Court granted plaintiffs’ motion and issued a
preliminary injunction which prohibited the City from enforcing
the challenged ordinance and imposed temporary procedures to
govern the issuance of permits for expressive activities in public
spaces until the City passed a new ordinance. The District Court
also directed the parties to meet and confer regarding the City’s
proposals to revise the ordinance and supervised that process as
disputes arose. The Court lifted the preliminary injunction and
closed the case only after the City passed a revised ordinance
which, the parties agreed, corrected all of the alleged
constitutional infirmities of the challenged ordinance.
3
Although several of our sister Courts of Appeals have
confronted the question, this appeal requires us to determine for
the first time whether 42 U.S.C. § 1988 allows a plaintiff to be
the “prevailing party” when it achieves relief on the merits of its
claims in the form of a preliminary injunction, but does not
secure a final judgment in its favor. Under the circumstances of
this case, we find that it does. Because we conclude that
plaintiffs were the “prevailing party” in this litigation and that
the District Court’s fee award was reasonable, we will affirm the
order of the District Court.
I.
Plaintiffs People Against PoliceViolence (“PAPV”),
Thomas Merton Center, and the National Association for the
Advancement of Colored People, Pittsburgh Branch, filed a
lawsuit under 42 U.S.C. § 1983 raising First Amendment
challenges to Chapter 603 of the Pittsburgh City Code,
Pittsburgh’s ordinance regulating parades and crowds in public
forums. Plaintiffs alleged that on October 3, 2003, PAPV
requested a permit from the City of Pittsburgh for a parade to
the Allegheny County Courthouse and a rally at the Courthouse,
to be held on November 1, 2003. The City informed PAPV that
it would grant the permit only on the condition that PAPV pre-
pay costs for police protection. Plaintiffs brought this lawsuit on
October 28, 2003 – four days prior to the planned event –
because, they asserted, as of that date the City had yet to notify
PAPV of the amount of the costs being assessed or to issue the
requested permit. The complaint also alleged that PAPV is a
small organization which could afford no more than a nominal
fee.
4
Plaintiffs’ complaint detailed the City’s handling of
PAPV’s permit request and set forth a long history of prior
alleged First Amendment abuses under Chapter 603. It alleged
that the City’s permitting procedures were unconstitutional, both
facially and as-applied, in at least three ways: (1) they gave City
officials excessive discretion regarding the use of public forums;
(2) they imposed unconstitutional financial obligations on
groups wishing to engage in expressive activities; and (3) they
lacked sufficient procedural due process protections. The
complaint also averred that plaintiffs intend to continue
organizing and sponsoring marches and rallies in the future.
Plaintiffs requested a declaration that Chapter 603 violated the
Constitution, a declaration that the City’s assessment of security
costs to plaintiffs violated the Constitution, and a permanent
injunction preventing the City from enforcing the ordinance and
from charging event sponsors for security-related costs.1
Plaintiffs also filed a motion for a temporary restraining order
(“TRO”) and/or preliminary injunction.
At the initial hearing before the District Court, held on
October 31, 2003, the City represented that it was no longer
enforcing Chapter 603 and that it would prepare a revised
ordinance to replace it. The City also acknowledged, however,
that it had not repealed Chapter 603 and that it had instituted no
alternate procedures to govern the issuance of permits for public
1
The complaint also requested an award of plaintiffs’ costs
and attorneys’ fees pursuant to 42 U.S.C. § 1988, and “such
other relief as this Court may deem just and appropriate to
protect plaintiffs’ constitutional rights.” App. at 20.
5
expressive activities in the interim. The Court granted
plaintiffs’ motion for temporary injunctive relief, concluding
that Chapter 603 “was facially unconstitutional under the First
Amendment . . . as applied to the states through the due process
clause of the Fourteenth Amendment.” App. at 31. It also ruled
that, if the City no longer enforced that ordinance, a permit
regime devoid of any prescribed process would also be
unconstitutional. The Court’s TRO prohibited the City from
enforcing Chapter 603, prohibited the City from assessing
security-related costs to permit applicants, and imposed
temporary procedures to govern the City’s issuance of permits
until the City passed a constitutionally adequate ordinance. The
Court also directed the parties to meet and confer regarding the
City’s proposed revisions and ordered the City to submit its
proposals to the Court.
The City submitted its initial proposal for a revised
ordinance shortly thereafter. At a second hearing before the
District Court, on November 25, 2003, the Court heard
arguments regarding the proposal and, without ruling on the
constitutionality of it, indicated that it found several aspects of
the proposal constitutionally problematic and gave the City a
“clear signal” that at least one aspect of it “would make [the
ordinance] facially unconstitutional.” App. at 90. The Court
converted its TRO into a preliminary injunction and continued
it otherwise unchanged. The Court also requested further
briefings from the parties regarding particular aspects of the
draft ordinance which the Court found troubling. The City took
no appeal from the entry of the preliminary injunction.
The City presented a second draft of its revised ordinance
6
to plaintiffs in December 2003. The City formally repealed
Chapter 603 on February 24, 2004, and promptly filed a motion
to lift the injunction and dismiss the lawsuit as moot.
At a third hearing held on February 27, 2004, the Court
heard testimony and argument regarding the City’s motion to
dismiss and regarding the terms of the permitting procedures set
forth in the preliminary injunction. The Court also entertained
arguments by plaintiffs that the City’s response to recent permit
applications had violated the preliminary injunction, and that the
City’s second draft ordinance failed to address some of their
core complaints regarding, for example, the City’s assessment
of fees and costs. The Court denied the City’s motion to
dismiss, finding that, because the City had merely repealed
Chapter 603 but had yet to adopt any procedures to take its
place, the action was not moot. The Court also indicated that
the City had violated the injunction. After the Court denied the
City’s motion to dismiss, the City consented to the injunction,
and the Court therefore continued the preliminary injunction in
effect with certain modifications agreed to by the parties.
Following the February 2004 hearing, the District Court
retained jurisdiction over the case, continued the injunction and
supervised the parties’ meet and confer process until the City
enacted a new ordinance and implementing regulations which,
the parties agreed, complied with the Constitution. That process
proved to be a protracted one. The City presented further drafts
of its revised ordinance which, plaintiffs argued, continued to
include certain provisions which would violate the District
Court’s injunction and the Constitution. Although plaintiffs
briefed and argued those contentions before the Court, the City
7
never pressed the Court to reach a judgment on the merits of any
of plaintiffs’ claims; it eventually acceded to each. Ultimately,
in early 2006, the City passed a new ordinance and
implementing regulations which satisfied all of plaintiffs’
concerns. At that point the Court lifted the injunction and
closed the case with the agreement of the parties.
Thereafter, PAPV filed a motion for attorneys’ fees under
42 U.S.C. § 1988. The Court concluded that plaintiffs were the
“prevailing party” and ordered the City to pay attorneys’ fees
and costs totaling $103,718.89. The City now appeals the
Court’s fee award.
II.
The District Court had jurisdiction over this § 1983
action pursuant to 28 U.S.C. §§ 1331 and 1343. This Court has
appellate jurisdiction pursuant to 28 U.S.C. § 1291 over the
District Court’s order awarding attorneys’ fees to plaintiffs.
We exercise plenary review over legal issues relating to
the appropriate standard under which to evaluate an application
for attorneys’ fees. J.O. ex rel. C.O. v. Orange Twp. Bd. of
Educ., 287 F.3d 267, 271 (3d Cir. 2002). We review the
reasonableness of the District Court’s award of attorneys’ fees
for abuse of discretion. City of Morris v. Nationalist Movement,
273 F.3d 527, 535 (3d Cir. 2001).
III.
The City contends that the District Court erred when it
8
found that plaintiffs were the “prevailing party” in this litigation.
Accordingly, we must first decide whether, under the
circumstances of this case, “prevailing party” status can be
predicated on plaintiffs’ having secured the preliminary
injunction. The City also challenges the reasonableness of the
District Court’s fee award.2
2
In addition, the City insists that the District Court’s
involvement in this case exceeded its jurisdiction and its
authority under Article III of the Constitution. These arguments
are unavailing. It is well settled that the voluntary cessation of
a challenged practice does not deprive a federal court of its
power to determine the legality of that practice, if the conduct
might reasonably be expected to recur. Friends of the Earth,
Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 189 (2000). It
is also clear that the repeal of a challenged ordinance does not
necessarily moot a challenge to the constitutionality of that
ordinance if the ordinance, or one with similar constitutional
infirmities, might be reenacted. Ne. Fla. Chapter of Associated
General Contractors of America v. City of Jacksonville, 508
U.S. 656, 662 (1993); City of Mesquite v. Aladdin’s Castle, Inc.,
455 U.S. 283, 289 (1982). Therefore, neither the City’s initial
representation that it would no longer enforce Chapter 603 nor
its formal repeal of that ordinance a few months later deprived
the District Court of jurisdiction, particularly given that
plaintiffs’ complaint alleged a long history of unconstitutional
conduct under the ordinance; the City had no alternate
procedures in place pending revision of Chapter 603; and the
City’s initial proposals to amend Chapter 603 gave the Court
cause for concern that a new ordinance would have similar
9
A
Under the “American Rule,” parties to litigation are to
pay their own attorneys’ fees, absent statutory authority and a
court order providing otherwise. Buckhannon Bd. and Care
Home, Inc. v. West Virginia Dep’t. of Health and Human
Resources, 532 U.S. 598, 602 (2001). In civil rights cases,
Congress has provided such authorization: courts “may allow
the prevailing party . . . a reasonable attorney’s fee.” 42 U.S.C.
constitutional infirmities.
Contrary to the City’s suggestions, we do not view the
District Court as having involved itself in the operation of a
local government. The Court never imposed any particular
ordinance on the City, and it never held that the City was
precluded from passing any particular ordinance. It merely held
that the City was required either to pass an ordinance that was
consistent with the Court’s injunction – which the Court
carefully tailored after hearing briefings, argument and
testimony from both sides – or to brief the Court regarding why
it should not be required to do so and seek a judgment on the
merits of its procedures. Indeed, the City initially passed a new
ordinance which, plaintiffs argued, was inconsistent with the
Court’s injunction and failed to correct certain constitutional
infirmities of the prior ordinance. The Court merely instructed
the City to brief it regarding why the City disagreed, or to
correct the problem. The City chose to correct the problem in
implementing regulations rather than to defend the merits of its
ordinance. The Court in no way injected itself into the
legislative process.
10
§ 1988(b) (“§ 1988”). Pursuant to this authority, the “prevailing
party” in such cases is normally awarded attorneys’ fees, absent
special circumstances. Truesdell v. Philadelphia Hous. Auth.,
290 F.3d 159, 163 (3d Cir. 2002); City of Morris v. Nationalist
Movement, 273 F.3d 527, 535 (3d Cir. 2001).3
Parties are considered “prevailing parties” if “they
succeed on any significant issue in litigation which achieves
some of the benefits the parties sought in bringing suit.” J.O. ex
rel. C.O. v. Orange Twp. Bd. of Educ., 287 F.3d 267, 271 (3d
Cir. 2002) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)) (internal quotation marks omitted). To “succeed” under
this standard, a party must achieve a “court-ordered ‘change in
the legal relationship between the plaintiff and the defendant.’”
Buckhannon, 532 U.S. at 604 (quoting Texas State Teachers
Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792 (1989)).
Therefore, courts may not award fees based on a “catalyst
theory;” a plaintiff does not become a “prevailing party” solely
because his lawsuit causes a voluntary change in the defendant’s
conduct. In that situation, the change in legal relationship lacks
the requisite “judicial imprimatur.” Id. at 601, 605.
The Supreme Court recently held that securing temporary
relief in the form of a preliminary injunction does not make the
plaintiff a “prevailing party” for purposes of § 1988 if the
plaintiff ultimately loses on the merits. Sole v. Wyner, U.S.
__, 127 S.Ct. 2188 (2007). Success achieved in a preliminary
3
Congress utilizes the term “prevailing party” consistently, as
a term of art, in many statutes. Buckhannon, 532 U.S. at 603.
11
injunction, the Court explained, does not render a party
“prevailing” if that success is ultimately “reversed, dissolved, or
otherwise undone by the final decision in the same case.” Id. at
2195. However, Sole expressly reserved for another day the
issue presented in this case: whether, “in the absence of a final
decision on the merits of a claim for permanent injunctive relief,
success in gaining a preliminary injunction may sometimes
warrant an award of counsel fees.” Id. at 2196.
The Supreme Court affirmed in Buckhannon that
litigation need not progress to a final judgment on the merits for
a § 1988 fee award to be proper. For example, a settlement
agreement enforced through a consent decree can serve as the
basis for an award of attorneys’ fees in an appropriate situation.
Buckhannon, 532 U.S. at 604. See also P.N. ex rel. M.W. v.
Clementon Bd. of Educ., 442 F.3d 848 (3d Cir. 2006); Truesdell,
290 F.3d at 165 (3d Cir. 2002). However, “[r]espect for
ordinary language requires that a plaintiff receive at least some
relief on the merits of his claims before he can be said to
prevail.” Buckhannon, 532 U.S. at 603-04. Similarly, this Court
has held that “stay put” orders which merely serve to maintain
the status quo pendente lite do not afford meaningful relief on
the merits of the underlying claims and will not suffice. John T.
ex rel. Paul T. v. Del. County Intermediate Unit, 318 F.3d 545,
558-59 (3d Cir. 2003); J.O. ex rel. C.O., 287 F.3d at 272-73.
Although this Court has never had occasion to decide
whether relief on the merits achieved in the form of a
preliminary injunction can confer “prevailing party” status,
nearly every Court of Appeals to have addressed the issue has
held that relief obtained via a preliminary injunction can, under
12
appropriate circumstances, render a party “prevailing.” 4 We
4
Several Courts of Appeals have held, or reaffirmed,
subsequent to Buckhannon that fee awards may be predicated on
success achieved in preliminary injunctions even if the case
never proceeds to a final judgment on the merits. Select Milk
Producers, Inc. v. Johanns, 400 F.3d 939, 945-50 (D.C. Cir.
2005); Watson v. County of Riverside, 300 F.3d 1092, 1095-96
(9th Cir. 2002); Dupuy v. Samuels, 423 F.3d 714, 718-25 (7th
Cir. 2005); Dubuc v. Green Oak Twp., 312 F.3d 736, 753-54
(6th Cir. 2002). Similarly, the Eleventh Circuit Court of
Appeals upheld a fee award based on relief obtained in a
preliminary injunction prior to the Supreme Court’s decision in
Buckhhannon, but in so doing it emphasized that it reached that
result without recourse to a “catalyst rule,” because “[t]he
‘catalyst’ test is utilized primarily in the absence of formal
judicial relief.” Taylor v. City of Fort Lauderdale, 810 F.2d
1551, 1560 (11th Cir. 1987) (emphasis in original). That Court
has reached the same result subsequent to Buckhannon in
unpublished opinions. See, e.g., Wyner v. Struhs, 179 Fed.
Appx. 566 (11th Cir. 2006).
At least one additional Court of Appeals has strongly
suggested that it would reach the same result if presented with
a comparable situation. See Northern Cheyenne Tribe v.
Jackson, 433 F.3d 1083, 1086 (8th Cir. 2006) (“Most of our
sister circuits have concluded that some preliminary injunctions
are sufficiently akin to final relief on the merits to confer
prevailing party status . . . . We are inclined to agree.”) (internal
citation omitted).
We find only one arguably dissenting Court of Appeals.
13
agree. Moreover, we conclude that this case involves
appropriate circumstances.
B
This is a case in which (1) the trial court, based upon a
finding of a likelihood of plaintiffs’ success on the merits,
entered a judicially enforceable order granting plaintiffs
virtually all the relief they sought, thereby materially altering the
legal relationship between the parties; (2) the defendant, after
opposing interim relief, chose not to appeal from that order and
remained subject to its restrictions for a period of over two
years; and (3) the defendant ultimately avoided final resolution
of the merits of plaintiffs’ case by enacting new legislation
giving plaintiffs virtually all of the relief sought in the
complaint. In these circumstances, we conclude that the District
Court did not err in finding plaintiffs to be a “prevailing party”
for purposes of § 1988(b).
A “preliminary injunction issued by a judge carries all of
the ‘judicial imprimatur’ necessary to satisfy Buckhannon,”
Watson, 300 F.3d at 1096,5 and this preliminary injunction
Smyth v. Rivero, 282 F.3d 268, 276-77 (4th Cir. 2002).
5
We need not determine in this case the outer limits of the
requisite “judicial imprimatur.” Buckhannon, 532 U.S. at 605.
Whatever those may be, preliminary injunctions are certainly
within them. Preliminary injunctions are, of course,
immediately appealable and subject to judicial enforcement. 28
14
placed a judicial imprimatur on plaintiffs’ entitlement to
substantially all the relief they sought in the complaint. This
was not a case where the filing of the lawsuit resulted in
voluntary change on the part of the City. It was precisely
because the Court believed voluntary change was not to be
expected that it ordered the City not to engage in the practices
of which plaintiffs complained. There was nothing voluntary
about the City’s giving up those practices. And the preliminary
injunction was not “dissolved for lack of entitlement.” Id.Rather, it was terminated only when the new statute was enacted
“after the preliminary injunction had done its job.” Id. The
ultimate mooting of plaintiffs’ claims resulted not solely from
the filing of the lawsuit but from the results of the legal process.
See, e.g., Select Milk Producers, Inc., 400 F.3d at 947; Watson,
300 F.3d at 1095-96; Dupuy, 423 F.3d at 722; Dubuc, 312 F.3d
at 753-54.
C
U.S.C. § 1292(a)(1); Associated Bus. Telephone Sys. Corp. v.
Greater Capital Corp., 861 F.2d 793, 795-96 (3d Cir. 1988).
Cf. P.N., 442 F.3d at 852-57 (consent decrees can confer
“prevailing party” status if mandatory and subject to judicial
enforcement). Although this Court has never held that
“prevailing party” status is limited only to success obtained in
“judgments” as opposed other court orders, we note that
preliminary injunctions generally qualify as “judgments.” Fed.
R. Civ. P. 54(a) (“‘Judgment’ as used in these rules includes a
decree and any order from which an appeal lies.”). See Select
Milk Producers, Inc., 400 F.3d at 948-49.
15
The City resists this conclusion, arguing that (1) the
District Court’s preliminary injunction was akin to a “stay-put”
order which did not address the merits of plaintiffs’ claims; (2)
plaintiffs achieved success in this litigation only through the
City’s voluntary actions; and (3) plaintiffs could not have
“prevailed” in the process of drafting a new ordinance because
those proceedings were superfluous and plaintiffs did not
specifically request such relief in their complaint. We are not
persuaded.
At the initial hearings in this case, plaintiffs achieved
much of the relief they sought in this lawsuit. The District Court
ruled that Chapter 603 was facially unconstitutional; it issued
temporary injunctive relief preventing the City from enforcing
that ordinance and from continuing specific challenged practices
until the City passed an adequate ordinance; and it directed the
City to submit its proposed revision to the Court and to confer
with plaintiffs regarding the constitutionality of its proposal.
Unlike in John T. ex rel. Paul T. , 318 F.3d at 558-59, the
Court’s TRO and preliminary injunction in this case did not
simply maintain the status quo. Rather, the injunction afforded
plaintiffs virtually all of the substantive relief they sought, albeit
initially on an interim basis. Much like in Select Milk
Producers, Inc., 400 F.3d at 945-50, the Court’s orders
prevented plaintiffs from being forced to operate under an
unlawful regime – the fundamental goal they sought. See also
Watson, 300 F.3d at 1095-96 (discussing Williams v. Alioto, 625
F.2d 845, 847 (9th Cir. 1980)). The preliminary injunction,
therefore, did not merely maintain the status quo; it altered the
legal relationship among the parties in a manner that afforded
plaintiffs substantial relief on the merits of their claims.
16
While preliminary injunctions by their nature constitute
provisional relief, this case is unlike Sole, 127 S.Ct. at 2194-96,
where the initial relief plaintiffs achieved under the Court’s
injunction proved to be fleeting. It is also unlike Dupuy, 423
F.3d at 722, where the fee award was premature because further
proceedings on the merits of the injunction were clearly
contemplated. In this case, plaintiffs achieved precisely what
they sought on an enduring basis – the permanent demise of the
challenged ordinance, and in its place a system that satisfied
plaintiffs’ goals. When the City ultimately passed a new
ordinance and implementing regulations which satisfied
plaintiffs’ demands, the Court closed the case with the
agreement of the parties; at that point, plaintiffs’ victories were
no longer subject to reconsideration on the merits in this case.
The fact that plaintiffs achieved their success by litigating and
enforcing a preliminary injunction rather than by proceeding to
final judgment on the merits does not diminish the substance of
their litigated victories. The injunction did not merely maintain
the status quo; it afforded plaintiffs lasting relief on the merits
of their claims.
The City’s assertion that plaintiffs achieved success only
through the City’s voluntary actions is equally untenable. See
Buckhannon, 532 U.S. at 605-09 (precluding fee awards based
on a “catalyst theory”). Although the City mounted no defense
to the constitutionality of Chapter 603, it opposed the TRO and
preliminary injunction at the first two hearings in this case and
sought to continue certain challenged practices which the
injunction prevented. Prior to the third hearing, the City filed a
motion to dismiss the lawsuit entirely; it ultimately consented to
the injunction (with certain modifications) only after that motion
17
was denied. Even thereafter, of course, the preliminary
injunction remained mandatory and subject to judicial
enforcement. See P.N. ex rel. M.W., 442 F.3d at 855-56;
Truesdell, 290 F.3d at 165.
Finally, we find that the District Court did not err when
it deemed plaintiffs the “prevailing party” not only for achieving
the preliminary injunction initially, but also for the subsequent
process of litigating the consistency of the City’s draft revisions
with the Court’s injunction and the First Amendment.6 The
demise of Chapter 603 did not moot the action. See supra note
1. Plaintiffs’ complaint challenged not just the terms of Chapter
603 itself but also the City’s “long history of using and misusing
the foregoing provisions to arbitrarily and discriminatorily
discourage or impede groups and organizations disfavored by
the City’s leadership from exercising their First Amendment
rights.” App. at 11. The complaint challenged not only the
excessive discretion the ordinance afforded City officials but
also the City’s pattern of employing specific, allegedly
unconstitutional, practices such as security related fees,
excessive administrative fees even for indigent applicants,
6
Contrary to the City’s assertion, the fact that plaintiffs’
complaint had requested permanent injunctive relief rather than
a Court-supervised revision of the challenged ordinance, alone,
certainly did not render plaintiffs’ successes in the subsequent
proceedings beyond the scope of § 1988. J.O. ex rel. C.O., 287
F.3d at 271 (“The relief need not be the exact relief requested as
long as it goes toward achieving the same goal.”) (internal
quotations omitted).
18
unconstitutional insurance-bond requirements and indemnity
agreements, unconstitutionally-long advance notice
requirements and failing to respond to permit requests in a
timely manner. The complaint sought not only the “demise” of
Chapter 603 but also permanent injunctive relief preventing the
City from engaging in such practices. The District Court found
that, even after the repeal of Chapter 603, the City’s lack of
guidelines for granting permits was per se unconstitutional and
would permit the City to continue the challenged practices. See
Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988);
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).
The Court also found reason to be troubled by the City’s initial
proposals to replace Chapter 603 and indicated that the City had
continued to employ some of the challenged practices even after
the Court issued the injunction prohibiting them. The “demise”
of Chapter 603 in no way ended the litigation and the
proceedings thereafter were far from “superfluous.”
We also disagree with the City insofar as it seeks to
characterize the proceedings following the entry of the
preliminary injunction and the repeal of Chapter 603 as lacking
the requisite “judicial imprimatur.” This Court, like other
Courts of Appeals, allows fees to be awarded for monitoring and
enforcing Court orders and judgments. See, e.g., Daggett v.
Kimmelman, 811 F.2d 793, 801 (3d Cir. 1987); Jenkins by
Jenkins v. Missouri, 127 F.3d 709, 716-17 (8th Cir. 1997); Diaz
v. Romer, 961 F.2d 1508, 1511-12 (10th Cir. 1992). Plaintiffs
argued at the November 25, 2003, hearing that the City had
violated the injunction and that the City’s proposed revision
would be unconstitutional. The Court agreed. The Court did
not lift the injunction for more than two years thereafter because
19
the City continued to press revisions which, plaintiffs argued,
contained provisions that were inconsistent with the injunction
and would have contravened the protections of the First
Amendment. The City complains that the District Court’s meet
and confer process lacked “judicial imprimatur” because it was
proactive and cooperative: the Court’s process allowed
plaintiffs to raise, and the parties and Court to discuss and
resolve, the bulk of plaintiffs’ challenges to the City’s draft
revisions before the City actually passed and enforced its new
ordinance. However, while the injunction remained in effect
plaintiffs certainly would have been entitled to challenge the
enforcement of any revised ordinance actually passed by the
City, forcing the Court to reach a judgment on the merits. The
proceedings in this case merely allowed plaintiffs to raise their
concerns prior to enforcement, a process that reached the same
result (resolution of plaintiff’s claims) with greater judicial
efficiency. We see no reason why plaintiffs should be denied
fees merely because they participated in a more efficient,
cooperative process; a contrary result would force future
litigants in plaintiffs’ position to prolong litigation unnecessarily
to assure entitlement to fees.
At the end of the proceedings, plaintiffs had achieved
precisely what they sought on an enduring basis, and that
success was a result of plaintiffs’ efforts and court-enforced
victories rather than defendant’s voluntary actions. The District
Court did not err when it based the lodestar on the full duration
of the proceedings. Hensley v. Eckerhart, 461 U.S. 424, 435
(1983) (“Where a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee”).
20
D
The City also challenges the reasonableness of the
Court’s award of attorneys’ fees. While the City enumerates a
long list of complaints regarding the Court’s calculation of
attorneys’ fees, each of those complaints is based on the same
premises: that, under Hensley, 461 U.S. 434-35, the Court
abused its discretion by allowing fees either for “unsuccessful”
claims or for “excessive, redundant or unnecessary claims.”
Appellant’s Br. at 30-31. These arguments are foreclosed by our
conclusion supra that the Court did not misinterpret the
applicable standards when it concluded that plaintiffs were the
“prevailing party” for the duration of the litigation. As
explained above, plaintiffs were entirely successful, and there
was nothing “superfluous,” Appellant’s Br. at 33, about the
hearings and proceedings subsequent to the issuance of the TRO
and preliminary injunction.
The District Court carefully reviewed plaintiffs’ fee
request and reduced the time submitted therein for certain hours
that the Court found non-compensable.7 Litigation in this matter
spanned nearly three years (prior to plaintiffs’ motion for
7
The Court denied compensation for time spent at City
Council hearings and in correspondence with City officials and
Council members; it made a discretionary reduction for
duplicative time resulting from the presence of two plaintiffs’
attorneys at Court hearings and conferences; and it made a
partial reduction for certain time spent on research (“re-reading
of cases”).
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attorneys’ fees), in large part because the City repeatedly
pressed provisions which the Court found to be unconstitutional
and in contravention of its preliminary injunction, thus
prolonging the litigation. By enforcing the injunction and
litigating disputes regarding the permissibility of the City’s
revisions, plaintiffs ultimately achieved all of the substantive
relief they sought on an enduring basis. The District Court did
not abuse its discretion by awarding a “fully compensatory fee.”
Hensley, 461 U.S. at 435.
IV.
For the foregoing reasons, we will affirm the judgment
of the District Court.
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