Turner, Wayne v. DC Bd Elect Ethics

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 21, 2003 Decided January 23, 2004
No. 03-7030
WAYNE TURNER, ET AL.,
APPELLANTS
v.
DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 98cv02634)
Arthur B. Spitzer argued the cause for appellants. With
him on the briefs was Graham A. Boyd.
William K. Shirey II argued the cause for appellee. With
him on the brief were Edward E. Schwab, Assistant Corpora-
tion Counsel, Donna M. Murasky, Senior Litigation Counsel,
Glen D. Nager and Jennifer L. Merzon.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: GINSBURG, Chief Judge, and ROGERS and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: 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’ constitu-
tional challenge to a federal statute under 42 U.S.C. § 1983,
leaves defense of the statute to the United States, as defen-
dant-intervenor. The district court apportioned the request-
ed § 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 enti-
tled 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 non-
fractionable 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.
I.
A brief recitation of the underlying lawsuit giving rise to
the request for attorney’s fees is necessary. See Turner v.
3
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 Medi-
cal 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 Amend-
ment 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 No-
vember 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, includ-
ing Wayne Turner, the official sponsor of Initiative 59 (here-
inafter, together, ‘‘Turner’’), sued the Board under 42 U.S.C.
§ 1983, seeking declaratory and injunctive relief. The com-
plaint, filed October 30, 1998, and Turner’s subsequent brief-
ing 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 Amend-
ments of the United States Constitution. Three days after
the election, Turner filed a motion for a temporary restrain-
ing 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.
4
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 mer-
its. 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 Tur-
ner’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. As-
serting 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
5
a prevailing party and did not question the reasonableness of
his counsel’s hours and rates. The magistrate rejected, how-
ever, 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 compara-
tive 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 magis-
trate apportioned 90% of the culpability for the merits litiga-
tion 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, understanda-
ble. 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. Tur-
ner, 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 magis-
trate’s comparative-fault apportionment but increased Tur-
6
ner’s partial award against the Board to $39,815. The district
court concluded, in recognition of § 1988’s purpose of encour-
aging 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 pre-
alignment 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, bring-
ing the total partial award to $61,529.
II.
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 appor-
tioning 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 prop-
erly 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
7
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 safe-
guarding ‘‘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 Con-
gress 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 par-
ties should be paid, as is traditional with attorneys compen-
sated by a fee-paying client, ‘for all time reasonably expended
on a matter.’ ’’ Hensley, 461 U.S. at 430 n.4 (quoting S. Rep.
No. 94–1011, at 6 (1976)). Thus, § 1988 ‘‘grants the success-
ful civil rights plaintiff a ‘fully compensatory fee.’ ’’ Missouri
v. Jenkins, 491 U.S. 274, 286 (1989) (quoting Hensley, 461
U.S. at 435); see also Covington, 57 F.3d at 1109.
Although ‘‘a request for attorney’s fees should not result in
a second major litigation,’’ and ‘‘the district court has discre-
tion in determining the amount of a fee award’’ because of its
‘‘superior understanding of the litigation and the desirability
of avoiding frequent appellate review of what essentially are
factual matters,’’ Hensley, 461 U.S. at 437 (emphasis added),
‘‘[i]t is now axiomatic that TTT the discretion of a district court
in deciding whether to award such fees to a prevailing party is
narrowly limited.’’ Consumers Union of U.S., Inc. v. Virgi-
nia State Bar, 688 F.2d 218, 222 (4th Cir. 1982) (citing
Bonnes v. Long, 599 F.2d 1316 (4th Cir. 1979)) (emphasis
added); accord Miller, 706 F.2d at 340. Where, as here, the
issues involved are not questions of fact but of law regarding
the appropriateness of apportionment, this court’s review is
de novo. See Jacobs v. Schiffer, 204 F.3d 259, 264 (D.C. Cir.
2000).
8
This court normally would defer to a thoughtful rationale of
the district court so long as it achieved a result that was fair
to the parties, see Williams v. First Gov’t Mortg. & Investors
Corp., 225 F.3d 738, 747 (D.C. Cir. 2000), but we are con-
strained to take a closer look at this § 1988 fees appeal in
light of the novel application of a comparative fault theory
based on tort law, see Turner, 170 F. Supp. 2d at 5–6 (citing
Restatement (Second) of Torts § 192). Here, the district
court, in adopting the magistrate’s analysis, see id. at 6–9,
applied its view of comparative fault in the sense that the
Barr Amendment placed the Board in a difficult position of
either having to enforce the Amendment or risk defying
Congress to which it is ultimately responsible, see U.S. Const.
art. I, § 8, cl. 17, and which controls its appropriations, see
D.C. Code § 1–204.46. The district court concluded that a
reasonable fee must take into account the fact that the United
States was primarily at fault. In developing this comparative
fault theory, the magistrate and the district court relied on
Grendel’s Den, Inc. v. Larkin, 749 F.2d 945, 960 (1st Cir.
1984), in which the First Circuit suggested relevant factors
for allocating fees among defendants. While a source of
guidance for jointly and severally liable defendants, Grendel’s
Den provides no support for apportioning § 1988 fees liability
so as to deny the prevailing plaintiff a fully compensatory fee
on a common set of claims against the defendants. Id.
Indeed, the First Circuit, in citing its own authority, among
others, recognized that it was not unjust to assess fees
against a governmental entity stuck with enforcing a law
ultimately found to be unconstitutional on its face even where
it did not enact the law and where some other entity may be
more culpable or causally responsible. Id. (citing Venuti v.
Riordan, 702 F.2d 6, 8 (1st Cir. 1983)).
Turner contends that the district court abused its discre-
tion, see Jacobs, 204 F.3d at 264; Nat’l Black Police Ass’n v.
D.C. Bd. of Elections & Ethics, 168 F.3d 525, 529 (D.C. Cir.
1999), by failing to award him a ‘‘fully compensatory award’’
where there are no ‘‘special circumstances [that] would ren-
der such an award unjust.’’ Hensley, 461 U.S. at 435, 429.
Specifically, Turner maintains that for the pre-alignment
9
period the district court erred as a matter of law in denying
his full fees even though the Board was the only defendant.
For the post-alignment period, Turner contends that the
Board, notwithstanding its alignment with his constitutional
challenge, continued to be his adversary throughout the mer-
its litigation because, although it could have settled in light of
its position that the Barr Amendment was unconstitutional, it
continued to enforce the Amendment, denying Turner his
sought relief. Moreover, while acknowledging that for the
fees-for-fees period he seeks to recover against the Board
only the fees that are attributable to his efforts under § 1988
and not for time devoted to EAJA collection from the United
States, Turner contends that there is no authority to appor-
tion § 1988 fees and expenses when the result is, as here, to
deny a successful plaintiff any fees for his attorneys’ work on
the merits, other than a fractional fee for the first week after
the complaint was filed. By so doing, Turner maintains the
district court’s fee award undermines ‘‘the premium that the
Civil Rights Act places on litigants as private attorneys
general,’’ Boos v. Barry, 704 F. Supp. 5, 9 (D.D.C. 1989), by
enabling ordinary citizens to obtain counsel to litigate merito-
rious civil rights cases.
Although the Board attempts for the first time on appeal to
contend that it, too, was a prevailing party, that argument is
not properly before the court. See United States v. Hylton,
294 F.3d 130, 135 (D.C. Cir. 2002). There is no basis to
conclude that the Board was not ‘‘the party legally responsi-
ble for relief on the merits,’’ Kentucky v. Graham, 473 U.S.
159, 164 (1985), as only it, and not the United States, could
certify the votes on Initiative 59. Results, not litigating
positions, are determinative of prevailing party status. Hens-
ley, 461 U.S. at 435. Turner incurred and continued to incur
attorney’s fees and expenses because the Board refused to
certify the election results. See Nationwide Bldg. Mainte-
nance, Inc. v. Sampson, 559 F.2d 704, 710 (D.C. Cir. 1977)
(citing Communist Party of U.S. v. Department of Justice,
No. 75–1770, slip op. at 3 (D.D.C. Mar. 23, 1976)); see also
Cuneo v. Rumsfeld, 553 F.2d 1360, 1365 (D.C. Cir. 1977),
overruled on other grounds by Burka v. United States Dept.
10
of Health and Human Services, 142 F.3d 1286, 1288 (D.C.
Cir. 1998). Hence, the Board’s claim of ‘‘alignment’’ with
Turner in challenging the Barr Amendment fails to show
exceptional circumstances to excuse its failure to raise this
argument in the district court. See Hylton, 294 F.3d at 135.
Our analysis of Turner’s § 1988 request proceeds on the
basis of four well-settled propositions of law on which Turner
relies. First, because an award of attorney’s fees under
§ 1988 ‘‘is not meant as a ‘punishment’ for ‘bad’ defendants
who resist plaintiffs’ claims in bad faith[,] [but] is meant to
compensate civil rights attorneys who bring civil rights cases
and win them,’’ Coalition for Basic Human Needs v. King,
691 F.2d 597, 602 (1st Cir. 1982), the fact that it was not the
‘‘fault’’ of the Board of Elections that the Barr Amendment
was enacted by Congress and that Turner had to litigate to
get the Board to count the votes on Initiative 59 is not a
‘‘special circumstance’’ warranting denial of a fully compensa-
tory fee. Second, it is irrelevant for purposes of § 1988 that
Congress, and not the Council of the District of Columbia,
enacted the Barr Amendment, because under 42 U.S.C.
§ 1983 the Amendment is treated as a District of Columbia
law. Third, in light of Supreme Court of Virginia v. Con-
sumers Union of the United States, Inc., 446 U.S. 719, 739
(1980), and King, 691 F.2d at 602, because the Board contin-
ued to enforce the Barr Amendment throughout Turner’s
§ 1983 litigation, it is irrelevant for purposes of § 1988 that in
court the Board supported Turner’s constitutional challenge
to the Barr Amendment. Fourth, because the Board’s liabili-
ty for § 1988 fees is not derivative of the United States’, it is
irrelevant that Turner did not timely seek attorney’s fees
under EAJA, for the immunity of one defendant does not
reduce the liability of a non-immune co-defendant. See Gra-
ham, 473 U.S. at 164–65; Supreme Court of Va., 446 U.S. at
739.
To ensure that a private attorney general is fully compen-
sated, ‘‘[i]t is frequently appropriate to hold all defendants
jointly and severally liable for attorneys’ fees in cases in
which two or more defendants actively participated in a
constitutional violation.’’ Herbst v. Ryan, 90 F.3d 1300, 1305
11
(7th Cir. 1996) (citing Koster v. Perales, 903 F.2d 131, 138 (2d
Cir. 1990)). Moreover, in order to serve the remedial pur-
poses of the Civil Rights Act, ‘‘a number of courts have
upheld the imposition of joint and several liability for a fee
award where there existed a question as to whether the fee
would be collectible from one of the defendants.’’ 90 F.3d at
1306 n.13; see also Carpenters Health & Welfare Fund v.
Kenneth R. Ambrose, Inc., 727 F.2d 279, 285–86 (3d Cir.
1983); Riddell v. Nat’l Democratic Party, 712 F.2d 165, 168–
169 (5th Cir. 1983). Thus, in this circuit, a plaintiff’s fully
compensatory fee for claims ‘‘centered on a set of common
issues’’ against two or more jointly responsible defendants
should be assessed jointly and severally. Action on Smoking
& Health v. Civil Aeronautics Bd., 724 F.2d 211, 216 (D.C.
Cir. 1984) (hereinafter ‘‘ASH’’). On the other hand, if claims
are not attributable to all defendants and are not ‘‘centered
on a set of common issues,’’ i.e., claims that are ‘‘truly
fractionable,’’ id., fees should be apportioned, ‘‘in order to
ensure that a defendant is not liable for a fee award greater
than the actual fees incurred against that defendant,’’ Jones
v. Espy, 10 F.3d 690, 691 (9th Cir. 1993).
The Supreme Court has acknowledged that ‘‘[f]ee awards
against enforcement officials are run-of-the mill occurrences.’’
Supreme Court of Va., 466 U.S. at 739. ‘‘Mere’’ enforcers of
unconstitutional laws may be held liable for attorneys’ fees
even if their involvement in the litigation has been minor or
they have argued that their enforcement actions are improper
and have lobbied for the underlying law to be changed. See
id.; cf. Carhart v. Stenberg, 192 F.3d 1142, 1152 (8th Cir.
1999), aff’d, 530 U.S. 914 (2000). Congress has determined
that the greater wrong would be to leave unpaid the attor-
ney’s fees and expenses of a successful § 1983 plaintiff who
has undertaken significant risks and expenses to vindicate
constitutional rights. See Carhart, 192 F.3d at 1152. As this
court observed, ‘‘the determinative factor must be the role of
plaintiffs’ lawsuit, not the motivations of the defendant.’’
Miller, 706 F.2d at 343.
Section 1988 does not permit a court to inquire into defen-
dants’ comparative fault where to do so obstructs Congress’
12
purpose of compensating successful private attorneys general.
King, 691 F.2d at 602. Even accepting the district court’s
view that the Board’s blameworthiness was relatively slight
compared to that of the United States, the Board’s § 1988
liability may not, to the prevailing plaintiffs’ detriment, be
reduced on the non-fractionable claims against the defen-
dants. State actors ‘‘may have had good-faith reasons for
their acts, but that is no reason to deny the [plaintiff]
attorney’s fees.’’ Id. The district court’s reservations about
holding District of Columbia officials fully responsible for
their enforcement of the Barr Amendment are therefore
misplaced. The unique relationship between Congress and
the District of Columbia under the Constitution simply means
that there will be occasions when the District of Columbia
government must pay attorney’s fees for successful § 1983
lawsuits challenging laws that the District Government did
not enact, for any Act of Congress that is solely applicable to
the District of Columbia is a law of the District of Columbia
for § 1983 purposes. Consistent with the court’s duty to
ensure that a successful § 1983 plaintiff is awarded a fully
compensatory fee, then, § 1988 fee awards based on a non-
fractionable claim may not be apportioned between an im-
mune ‘‘losing party,’’ see Graham, 473 U.S. at 164, who
cannot be made to pay, and a non-immune losing party that is
jointly and severally liable for the former’s share of an
attorney’s fee award.
As previously explained, joint and several liability exists for
all defendants on the non-fractionable claims, see Herbst, 90
F.3d at 1305; it is only when there are fractionable parts of a
lawsuit not fairly attributable to other parties that liability for
attorney’s fees and expenses may be apportioned exclusively
to the party who caused the plaintiff to incur those costs, see
ASH, 724 F.2d at 216. Turner’s § 1983 lawsuit to obtain a
preliminary injunction and declaratory judgment against the
Board and, once it intervened, against the United States
centered on a common set of issues: namely, the Board’s
refusal to count and certify the votes on Initiative 59. While
the United States’ intervention as a defendant affected the
course of the proceedings, there was not a separate claim
13
against the United States, compare Southeast Legal Defense
Group v. Adams, 657 F.2d 1118, 1125 (9th Cir. 1981); Jones,
10 F.3d at 692 n.2, as is clear from the fact that if the United
States had not intervened, Turner would have been required
to litigate the merits of his § 1983 claim so long as the Board
continued to enforce the Barr Amendment. The magistrate’s
finding, adopted by the district court, stated there is nothing
to indicate that, but for the United States’ intervention, the
Board would have unilaterally stopped enforcing the Amend-
ment. See Turner, 170 F. Supp. 2d at 7. Because the United
States enjoys sovereign immunity over the share of Turner’s
fees it otherwise would bear, the Board, as a jointly and
severally liable losing party, must pay all attorney’s fees
associated with the non-fractionable claim, here consisting of
the entire litigation from the date Turner filed his complaint
to the date he obtained summary judgment.
By contrast, as Turner acknowledges, his fees-for-fees liti-
gation is fractionable. Because it involves distinct claims, i.e.,
different statutes with different standards of proof, Turner
correctly seeks only to recover fees-for-fees from the Board
based on his § 1988 claim against the Board and not based on
his EAJA claim against the United States. Compare 42
U.S.C. § 1988(b) with 28 U.S.C. § 2412(d)(1)(A). For the
fees-for-fees litigation, Turner’s counsel engaged in separate
research on each statute and generated a separate argument
about how each party’s role in the suit rendered it liable to a
prevailing party’s claim for attorney’s fees. See Turner, 170
F. Supp. 2d at 9. His counsel’s hours therefore can be ‘‘easily
compartmentalized,’’ ASH, 724 F.2d at 216, preventing Tur-
ner from recovering fees-for-fees against the Board for his
EAJA claim.
We therefore hold that the district court (and the magis-
trate judge) erred as a matter of law by using considerations
of comparative fault in apportioning Turner’s § 1988 request
for attorney’s fees and expenses on a non-fractionable claim
between the non-immune Board and the immune United
States. Because there is no issue regarding the reasonable-
ness of his counsel’s hours and rates, Turner was entitled to
recover 100% of the fees and expenses incurred for the merits
14
litigation. In the pre-alignment period, the United States
was not a party and hence there was no basis for limiting
Turner’s recovery to 87%. In the post-alignment period, the
Board continued to enforce the Barr Amendment, denying
Turner the sole relief that he sought in his litigation; the
Board neither certified the results nor settled the case. By
contrast, Turner’s claims for fees-for-fees under § 1988 and
EAJA are fractionable, and the district court, using motions
pages as a proxy for any other allocation, properly appor-
tioned the fees between the Board and the United States.
Accordingly, we vacate so much of the order as awarded
Turner only a partial award of his attorney’s fees and ex-
penses under § 1988 for the § 1983 merits litigation, and
remand the case to the district court to enter a fully compen-
satory award.