USCA1 Opinion
August 17, 1993 UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2339
ERNEST PITOCHELLI, ET AL.,
Plaintiffs, Appellee,
v.
TOWN OF JOHNSTON,
Defendant, Appellant.
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ERRATA SHEET
The opinion of this Court issued on July 6, 1993, is amended
as follows:
Strike the first full paragraph on page 6.
Strike "as modified" in the mandate paragraph on page 6.
July 6, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-2339
ERNEST PITOCHELLI, ET AL.,
Plaintiffs, Appellees,
v.
TOWN OF JOHNSTON,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Thomas A. DiLuglio for appellant.
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John A. Glasson for appellees.
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COFFIN, Senior Circuit Judge. Defendant appeals an award of
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attorney's and expert fees granted to plaintiffs at the
conclusion of their successful challenge to the voting districts
in the Town of Johnston, Rhode Island. We decrease the amount of
the expert fees award but otherwise affirm.
I.
The Town of Johnston contains five councilmanic districts
that, until this litigation, had not been redrawn since they were
adopted in 1963. In June 1990, two registered voters sued the
town pursuant to the Civil Rights Act of 1871, 42 U.S.C. 1983,
1985(3), to effect reapportionment in accordance with the one-
person, one-vote standard of Reynolds v. Sims, 377 U.S. 533
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(1964). In their motion for a preliminary injunction, plaintiffs
sought immediate redistricting according to data collected in the
1980 census or, alternatively, electing all seats in 1990 at
large. The district court determined that the councilmanic
districts were malapportioned and ordered the town to conduct at-
large elections that year. It did not yet require redistricting
because release of the 1990 census data was imminent and the town
could not reapportion the districts without postponing the
elections.
Once data from the 1990 census became available, plaintiffs
amended their complaint to request redistricting based on these
population figures. Finally, in August 1992, on the eve of
trial, the town submitted a reapportionment plan using the 1990
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census data. The plan, with some revisions, was accepted by
plaintiffs and the court, and a consent judgment was entered.
Plaintiffs then moved for attorney's fees, expert fees, and
costs, totalling $26,398.13. The town objected, arguing
primarily that plaintiffs were not entitled to a full award
because they had not prevailed on all of their claims and that
the town was not responsible for the malapportionment. After a
hearing, the district court awarded plaintiffs the entire amount
of their request. This appeal followed.
II.
In an action to enforce civil rights, the prevailing party
may recover attorney's and expert fees. 42 U.S.C. 1988.1 The
determination of whether a party has prevailed and the decision
to award fees is committed to the sound discretion of the
district court. McDonald v. Secretary of Health and Human
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Servs., 884 F.2d 1468, 1474 (1st Cir. 1989). The district court
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must provide a clear explanation of its award to ensure
meaningful review. Grendel's Den, Inc. v. Larkin, 749 F.2d 945,
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950 (1st Cir. 1984).
The town concedes plaintiffs' entitlement to an award of
attorney's and expert fees. At oral argument, it also conceded
that plaintiffs are entitled to the full amount requested if they
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1 The retroactive applicability of the Civil Rights Act of 1991,
which amended Section 1988 to allow the prevailing party to
recover expert fees, currently is pending before the Supreme
Court. See Landgraf v. USI Film Products, 113 S. Ct. 1250
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(1993), granting cert. in part to, 968 F.2d 427 (5th Cir. 1992).
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We need not determine whether the Act applies to this proceeding,
however, because defendant has never raised the issue.
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are found to be the prevailing party on all their claims. The
town protests, however, that the award is excessive because
plaintiffs did not succeed in obtaining reapportionment based on
the 1980 census, as they originally requested.
A party prevails if it "`succeed[s] on any significant issue
in litigation which achieve[s] some of the benefit [it] sought in
bringing the suit.'" McDonald, 884 F.2d at 1474 (quoting Nadeau
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v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). The district
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court determined that plaintiffs had achieved their ultimate goal
of a just reapportionment, based on the most recent census
figures. It further determined that the requested attorney's and
expert fees were reasonable. The court therefore awarded fees
for work expended on both the 1980 and 1990 census claims. We
affirm.
Defendant's technical focus on the 1980 census claim is
misguided. Plaintiffs sued the town to achieve a fair
apportionment of the town's voting districts, and, at every step
of this proceeding, they succeeded. At the preliminary
injunction hearing, they proved that the town's voting districts
were malapportioned under the 1980 census, and the court forbade
use of these districts in the 1990 elections. Once the 1990
census data became available, plaintiffs amended their complaint
and eventually effected redistricting based on these figures.
The district court therefore did not abuse its discretion by
awarding fees for work expended on plaintiffs' original and
amended claims.
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Alternatively, the town argues that special circumstances
render any award unjust. The town explains that its charter
requires districts based on the number of electors, not
residents. Johnston Town Charter Sec. 2-6. It therefore claims
that it "did not create and is powerless to prevent" the
malapportionment. Appellant's Brief at 18-19. The town asserts
that its blamelessness is a special circumstance that should
relieve it of the burden of bearing plaintiffs' fees. See
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Chastang v. Flynn and Emrich Co., 541 F.2d 1040, 1045 (4th Cir.
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1976) (citations omitted).
The town's argument lacks merit. We note that the charter
itself requires the town to redistrict within one year of each
census and more often if necessary, yet the town took no action
until it was sued 27 years after the districts first were
established.2 The town clearly had the authority to reapportion
the councilmanic districts, for it drafted the redistricting plan
incorporated in the consent judgment.
Finally, the town contends that the district court's award
of fees resulted from a biased perception that the town had
prolonged the litigation needlessly and willfully. The town
argues that newspaper articles critical of its conduct of the
case impermissibly influenced the district court. Defendant
appends copies of these articles to its brief on appeal. It did
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2 On appeal, the town urges that it made attempts to correct the
malapportionment before this lawsuit. The record, however, does
not contain any competent evidence of these attempts.
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not present the issue of bias or the articles to the district
court.
We decline to consider the question of bias, for it was
raised for the first time on appeal. See United States v.
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Yefsky, No. 90-1174, slip op. at 22 n.7 (1st Cir. May 3, 1993).
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We do not intend, however, for our refusal to be construed as
conferring merit on defendant's claim. The town has not
presented a plausible challenge to the district court's
impartiality.
Affirmed.3
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3 In its brief, the town included two pages entitled "Appellant,
Town of Johnston's, Motion for Rehearing," which purports to
request reconsideration of the district court's award of fees.
The town has not filed a motion requesting this relief, and we
decline to address its self-styled "motion." The issues it
raises, however, are identical to those raised on appeal.
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