dissenting:
In Harmon I we remanded, because:
[t]he gap between the figures employed by the appellant, which yielded the amount requested by the appellant, and the amount ordered by the district court is too great to permit a mere recital of having considered Kerr to insulate the order from reversal.
664 F.2d 770, at 772. The gap remains. The district court on remand awarded an identical fee. The court’s cursory explanation for a large portion of the discrepancy between the fee requested and the fee awarded is that the 454.2 hours spent by plaintiff’s counsel were "unreasonable” and that time in excess of 200 hours was “frivolously spent.”
Harmon’s counsel submitted a detailed breakdown of the hours expended on various tasks performed in litigating the case. None of these hours appears patently unjustified. The district court, however, fails to explain which of these hours it believes were unnecessary or frivolous. I would hold that the district court has not complied with this court’s directive to explain its result adequately.
If, as appears likely, Harmon’s counsel were to obtain an increase in the fee awarded upon a second remand of the case, I would award additional fees for his efforts in prosecuting the fee issue. See Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (9th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979) (plaintiff entitled to fees for appeal where an issue is finally determined on the merits in its favor).