United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 12, 1999 Decided March 5, 1999
No. 98-7120
National Black Police Association, et al.,
Appellees
v.
District of Columbia Board of Elections and Ethics, et al.,
Appellants
D.C. Statehood Party,
Appellees
Consolidated with
No. 98-7177
Appeals from the United States District Court
for the District of Columbia
(No. 94cv01476)
Edward Schwab, Assistant Corporation Counsel, argued
the cause for appellants. With him on the briefs were John
M. Ferren, Corporation Counsel, and Charles L. Reischel,
Deputy Corporation Counsel.
Thomas J. Judge argued the cause for appellees. With
him on the brief were Daniel J. Standish, Lisa A. Burns,
Arthur B. Spitzer and Lawrence H. Mirel.
Before: Williams, Sentelle and Garland, Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: The District of Columbia appeals
an award of attorney's fees to the National Black Police
Association and associated plaintiffs (collectively the "NBPA")
who won an injunction against a D.C. citizen initiative capping
campaign contributions to candidates for D.C. Mayor, City
Council, and Board of Education. In the litigation resulting
in the fee award, the district court held that the contribution
limits improperly infringed on the free speech of candidates
and the free association rights of contributors in violation of
the First Amendment. The District argues that the victory
won by the plaintiffs was de minimis, and that the more than
$619,000 in fees awarded was so disproportionate to the value
of the victory, measured in campaign contributions, as to
amount to an abuse of discretion. We disagree. First
Amendment freedoms are neither so amenable to financial
measurement nor so easily discounted as the District would
have us believe. For the reasons stated below, we uphold the
district court's award of attorney's fees.
I. BACKGROUND
The history of this litigation is recounted in detail in our
prior opinion in this case, National Black Police Association
v. District of Columbia, 108 F.3d 346, 348-49 (D.C. Cir. 1997),
and we repeat here only so much as is needed to explain our
decision. The citizen initiative, the D.C. Campaign Contribu-
tions Limitation Initiative of 1992 ("Initiative 41") (codified at
D.C. Code s 1-1441), prohibited contributions of more than
$100 to any candidate for Mayor, D.C. Council Chairman, or
at-large Council member, and $50 for any ward council mem-
ber or Board of Education candidate. It also prohibited any
contributor from giving more than $600 to all candidates in
any election. The overall cap did not apply to contributions
made to initiative, referendum or recall measures. D.C. Law
9-204, D.C. Code s 1-1441.1, amended by D.C. Law 11-144,
43 D.C. Reg. 2174 (1996). The initiative, popularly known as
Initiative 41, took effect March 17, 1993. In February 1994,
less than a year after Initiative 41 passed, Council Member
Jack Evans introduced a bill that would have reinstated the
campaign limits in place prior to Initiative 41. See Jonetta
Rose Barras, Campaign Limits Face Repeal, Wash. Times,
Mar. 11, 1994, at C6. The proponents of the initiative made it
clear that they would again go to the polls to reinstate the
contribution limits if the Council passed Evans's legislation.
See Statement of Donna F. Edwards, Executive Director,
Center for a New Democracy, April 20, 1994, Appendix II at
10. The bill ultimately failed.
The appellees, five individual and four organizational plain-
tiffs, filed suit on July 6, 1994, challenging the campaign
finance contribution limits on First and Fifth Amendment
grounds, and as a violation of the Home Rule Charter,
seeking an injunction against the contribution limits. The
district court denied preliminary injunctive relief, and tried
the case over a five-day period in February 1996. Prior to
trial, Council Member Harold Brazil introduced another bill
designed to raise Initiative 41's limits. The Council vote
approving the bill came after the close of trial, but before the
district court issued its injunction.
On March 5, 1996, and again on April 2, 1996, the Council
voted in favor of the Brazil bill. On April 18, 1996, Mayor
Marion Barry signed the legislation repealing the citizen
initiative, and the thirty-day waiting period for congressional
review of city ordinances began to run. The District is
required to submit Council-enacted laws to Congress for a
thirty-day period that excludes Saturdays, Sundays, holidays,
and days when Congress is in recess or not in session; a law
will only take effect if Congress does not enact a joint
resolution of disapproval during the thirty-day period. D.C.
Code s 1-233(c)(1) (Supp. 1998). The new campaign legisla-
tion increased Initiative 41's campaign ceilings so that the
limits became $2,000 for mayoral candidates, $1,500 for Coun-
cil Chairman candidates, $1,000 for at-large Council member
candidates, $500 for ward Council member candidates and at-
large Board of Education candidates, and $200 for ward
Board of Education member candidates, and raised the total
cap on contributions in a given election to $8,500. D.C. Law
11-144, 43 D.C. Reg. 2174, 2174-75 (1996).
On April 19, 1996,1 the district court issued an injunction on
the grounds that the limitations unconstitutionally infringed
the free speech rights of candidates and the free association
rights of contributors. See National Black Police Ass'n v.
District of Columbia Bd. of Elections and Ethics, 924
F. Supp. 270 (D.D.C. 1996), judgment vacated, 108 F.3d 346
(1997). Fifty-two days later, on June 13, 1996, the new
legislation repealing the contribution limits became effective
after the thirty-day period for congressional review. The
District appealed, initially supporting the initiative as consti-
tutional, then changing its position after the Brazil bill passed
and asked that the judgment be vacated as moot. We agreed
and the judgment in the case was vacated as moot because
the District of Columbia had passed the new ordinance. See
National Black Police Ass'n, 108 F.3d at 347-48.
On May 27, 1998, the district court issued an order award-
ing the NBPA $544,325.85 in attorney's fees and $41,327 in
costs for litigating the case, and on July 17, 1998, issued an
order awarding appellees $31,413.15 in attorney's fees and
$2,765.87 in costs for litigating the attorney's fees request.
The total of the two awards is $619,831.87. The court held
that the plaintiffs/appellees were the prevailing parties de-
spite the eventual mootness of the case because there was an
enforceable judgment against the District during the thirty-
__________
1 The order enjoining enforcement of the campaign contribution
limitations in D.C. Code s 1-1441(a) & (b) (Supp. 1995) is date-
stamped as filed on April 18, and hand-lettered April 19th. The
district court docket shows the order as issued on April 19th.
Which of the two dates is correct is immaterial to our disposition.
day congressional review period, which expired June 13, 1996.
During that period, it held, the injunction changed the legal
relationship of the parties, and contributors were able to
make substantial contributions that otherwise would not have
been legal.
The District now appeals the award of attorney's fees on
the grounds that the appellees either were not a prevailing
party within the meaning of the statute, or in the alternative
that their victory was de minimis, and thus it was an abuse
of discretion to award the attorney's fees when the benefit to
the plaintiffs was so disproportionate to the fee award. Spe-
cifically, they argue that because the injunction was granted
against a repealed statute, and the judgment was ultimately
vacated, the fact that the appellants did achieve a victory
limited to the congressional review period was insufficient to
support the award of more than $600,000 in attorney's fees.
Finally, they argue that the unfettered exercise of political
speech during a period when there were no campaign contri-
bution limits is harmful, and thus weighs in favor of overturn-
ing the fee award. We consider these arguments in turn.
II. PREVAILING PARTY
42 U.S.C. s 1988(b) provides: "In any action or proceeding
to enforce a provision of section[ ] 1983 ... of this title ...
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." The Supreme Court stated the basic test
for prevailing party status in Farrar v. Hobby, 506 U.S. 103,
111-12 (1992).
[T]o qualify as a prevailing party, a civil rights plaintiff
must obtain at least some relief on the merits of his
claim. The plaintiff must obtain an enforceable judg-
ment against the defendant from whom fees are sought,
or comparable relief through a consent decree or settle-
ment. Whatever relief the plaintiff secures must directly
benefit him at the time of the judgment or settle-
ment.... In short, a plaintiff "prevails" when actual
relief on the merits of his claim materially alters the
legal relationship between the parties by modifying the
defendant's behavior in a way that directly benefits the
plaintiff.
Id. (citations omitted).
The District argues that the plaintiffs are not entitled to
attorney's fees because their victories are "purely symbolic,"
technical and de minimis. Initiative 41 had already been
repealed when the injunction issued, and the injunction was
effective for only 52 days. The fact that a panel of this court
has already found the case moot on appeal, they argue,
proves that the District had already supplied any relief to
which the plaintiffs might be entitled. The District first
relies on Rhodes v. Stewart, 488 U.S. 1 (1988). In Rhodes,
two plaintiffs were complaining individually about their treat-
ment in prison and seeking injunctive relief. Before the
court entered judgment, one plaintiff had died and the other
had been released from prison. Id. at 2. The court denied
any award of fees. Id. at 4. The District argues that Rhodes
establishes that a plaintiff is not a prevailing party where the
litigation becomes moot. But Rhodes is not controlling in the
present case. The judgment entered in Rhodes did not alter
the relationship between the parties, because no relationship
existed. Here, in contrast, the district court specifically
found when considering the fee award that its injunction had
a real effect on the parties' behavior. The new legislation
became effective only after the injunction issued, and during
the pendency of the District's appeal.
The fact that the case was moot by the time of the appeal
does not alter the fact that the injunction altered the legal
relationship between the parties when it was issued. The
order was not moot when issued, and did not become so for 52
days. Accordingly, the plaintiffs secured a real-world vindi-
cation of their First Amendment rights, even if, as it proved,
extraneous events would have given them the substantial
equivalent 52 days later.2
__________
2 We have no need to consider the merits of plaintiffs' First
Amendment claims ourselves. "[O]nce a court has already ruled
that the claims are actionable--not just colorable--civil rights
As we have long held, the subsequent mootness of a case
does not necessarily alter the plaintiffs' status as prevailing
parties. In Grano v. Barry, 783 F.2d 1104, 1108-09 (D.C.
Cir. 1986), the Rhodes Tavern was scheduled to be razed. A
group attempted to save the building as a historic building.
The group managed to get the issue on the ballot and was
granted a preliminary injunction until the election could be
held. Id. at 1106-08. Although the case was rendered moot
on appeal by the intervening election, we upheld the lower
court's subsequent holding that the plaintiffs were prevailing
parties for the purposes of s 1988(b) on the basis of their
success in obtaining the injunction, which was a major part of
the relief they were seeking. Id. at 1108-10.
The plaintiffs were the prevailing parties in the litigation at
bar. The relief they ultimately won was specifically the relief
they requested. In Farrar, the Supreme Court stated that
"plaintiffs may be considered 'prevailing parties' for attor-
ney's fees purposes if they succeed on any significant issue in
litigation which achieves some of the benefit the parties
sought in bringing the suit." Farrar, 506 U.S. at 109 (quot-
ing Hensley v. Eckerhart, 461 U.S. 424, 453 (1983)). The
inquiry focuses on whether "at the time of the judgment or
settlement ... [the] actual relief on the merits ... materially
alters the legal relationship between the parties by modifying
the defendant's behavior in a way that directly benefits the
plaintiff." Id. at 111-12. In this case the district court
properly found that the plaintiffs were prevailing parties
because at the time judgment was entered, the injunction
altered the legal relationship between the parties.
The District next argues that a party may prevail and still
not be awarded attorney's fees, because in some instances "a
technical victory may be so insignificant ... as to be insuffi-
cient to support prevailing party status." Texas State Teach-
ers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792
__________
claims, the question of whether the party meets the statutory
requirement of having prevailed on the basis of 'civil rights' claims
has been unequivocally answered." Grano v. Barry, 783 F.2d 1106,
1111 (D.C. Cir. 1986).
(1989). This, it argues, is one of those cases. But for the
congressionally-mandated waiting period, the injunction
would have been moot before it was issued. The Texas State
Teachers Association decision, though cited by the District, in
fact supports the award of fees to the NBPA. In that case,
the fee petitioners had filed a complaint seeking to enjoin a
school district's prohibiting of communications between a
teachers' association and teachers during the school day and
also a regulation prohibiting access to facilities by employee
organizations without the approval of a school principal. Al-
though the plaintiffs failed to obtain much of the relief sought,
they did succeed in establishing the invalidity of some of the
limitations on teacher-to-teacher communications. Id. at 785-
86. In reversing a circuit decision denying plaintiffs' right to
a fee award, the Supreme Court held that a judgment vindi-
cating the First Amendment rights of plaintiffs and "materi-
al[ly] alter[ing]" a governmental policy limiting those First
Amendment rights was not one that could be characterized as
"purely technical or de minimis." Id. at 792. Just so here.
We therefore hold that the NBPA is entitled to its fee
award under the test laid out by the Supreme Court in Texas
State Teachers Association. Here, the plaintiffs received
exactly the relief they sought. The District's long-delayed
reaction in passing a new provision raising the campaign
spending limits, after the case closed in federal court, beat
the opinion by only 24 hours, and did not take effect until 52
days after the injunction issued. Moreover, as NBPA notes,
it was by no means a foregone conclusion that the new
legislation would pass congressional review, or more impor-
tantly, that the proponents of Initiative 41 would not reintro-
duce precisely the same limitations by referendum.
III. REASONABLENESS
Having decided that the NBPA was a prevailing party, we
proceed to the reasonableness inquiry. The question we
must answer is whether the district court abused its discre-
tion in setting the amount of attorney's fees under 42 U.S.C.
s 1988. The District of Columbia argues that the district
court did abuse its discretion in awarding $619,831.87 in fees,
when the candidates received only a total of $28,883 in
contributions during the period in which the injunction was in
effect. That amounts to $21.46 in fees for each dollar given.
The fees, the District argues, are so incommensurate with the
benefit actually achieved as to render the fee award unrea-
sonable. It also argues that the time value of the money may
be a more appropriate measure of the victory, and that
measure makes their case more powerfully. The best case
the NBPA could make, given that the contributions flowed in
over time, was that the injunction was valued at $481.38, or
the time value of $28,883 at 10 percent for 60 days, a total of
$1,287.61 in attorney's fees for each dollar of the value of the
injunction.
The District also disputes the appellees' suggestion that the
injunction had a greater value because it came at a critical
time in the election race. The District argues that the record
shows that the bulk of the contributions during the injunction
period went to established candidates, not to neophytes who
truly needed "seed money." Three incumbent candidates
received $21,395 of the $25,098 contributed. The remaining
money also went to incumbents. The injunction had no non-
monetary value, because the initiative had already been re-
pealed.
Both the premises and logic of these arguments are wrong-
headed. That the vindicated First Amendment rights of the
contributors yielded only a relatively small amount of money
in no way reflects the value of those rights to those who
exercise them. In Texas State Teachers Association, the
Supreme Court did not ask how many teachers took advan-
tage of their First Amendment rights by communicating with
their co-workers, nor did the Court seek to evaluate the
volume or effectiveness of the speech. The First Amendment
rights of the exercisers were intrinsically valuable, and those
who vindicated them were entitled to fees without any at-
tempt at quantification. We know of no hierarchy of First
Amendment values that would make the rights of the contrib-
utors here any less intrinsic than those of the teachers in the
Supreme Court case. Likewise, the fact that the contributors
chose to exercise their First Amendment rights in favor of
established incumbent candidates rather than the neophytes
now favored by the appellants makes them no less valuable.
Had the plaintiffs sought to enjoin an ordinance prohibiting
public gatherings, the vindication of the rights of those who
wish to gather would as well have supported counsel fees,
whether the meeting was of seven adherents of a particular
political viewpoint or seventy times seven.
Further, the "time value" argument is without merit. That
the contributors, as events unfolded, could have made the
contributions after the amendment of the campaign limits is
immaterial to the value of the contribution when made. Also,
as a matter of hard reality, the plaintiffs could not have
known at the time they incurred their legal fees that events
would unfold as they did.
Finally, the District makes the remarkable argument that
"there was danger that harm to the public interests from the
injunction outweighed any benefit to the appellees," because
without the regulation contributors might abuse their rights.
The District actually argues that "even the most fervent
advocate of First Amendment rights would have to recognize
the danger that a period of unregulated campaign contribu-
tions, preceding the known contribution limits of the new law
could lead to abuse." We need say little about this argument.
Granted, it is frightening that a government in the United
States would advance the position that the vindication of First
Amendment rights is dangerous because its citizens, unfet-
tered, might abuse those rights. Granted further, we doubt
that even the most lukewarm advocate of First Amendment
rights, let alone the most fervent, could agree with the
District's proposition. Nonetheless, we need discuss it but
little because the District, unsurprisingly, offers no authority
for the proposition that such a danger can affect the entitle-
ment or calculus of counsel fees under 42 U.S.C. s 1988.
As to the length of the injunction, Grano shows that an
injunction of limited duration is sufficient to support an award
of attorney's fees, even where the case has become moot in
the interim. See Grano, 783 F.2d at 1108-09. There we
noted that
[w]hile it is obvious that a party who succeeds in obtain-
ing a favorable final judgment following a full trial on the
merits and exhaustion of all appeals is a prevailing party,
it is also clear that a party may be considered to have
prevailed even when the legal action stops short of final
appellate, or even initial, judgment due to a settlement or
intervening mootness.
Id. at 1108. Other circuits have reached the same conclusion.
See, e.g., Dahlem v. Board of Educ. of Denver Pub. Schs., 901
F.2d 1508, 1512 (10th Cir. 1990); Bishop v. Committee on
Prof'l Ethics and Conduct of the Iowa State Bar Ass'n, 686
F.2d 1278, 1290-91 (8th Cir. 1982); Williams v. Alioto, 625
F.2d 845, 847-48 (9th Cir. 1980); Doe v. Marshall, 622 F.2d
118, 119-20 (5th Cir. 1980).
The Supreme Court in Farrar held that a plaintiff's degree
of success is part of the reasonableness calculation when
determining attorney's fees under Section 1988. Having
carefully considered the District of Columbia's arguments, we
hold that the award of fees in this case was reasonable given
the plaintiffs' success on the merits.
IV. CONCLUSION
We hold that the district court properly found the plaintiffs
to be the prevailing parties in this case. The subsequent
mootness of the case does not alter the fact that they were
successful in their attempt to enjoin as unconstitutional the
campaign spending limits created by Initiative 41. We also
hold that the district court did not abuse its discretion in
awarding attorney's fees to the plaintiffs, and that it fully
explained the award in the memorandum opinion accompany-
ing that award. For the foregoing reasons, the attorney's
fees award is affirmed.