did join plaintiffs in seeking a declaratory judgment that the
Barr Amendment was unconstitutional, it did so only after being
sued itself. There is absolutely no indication anywhere that the
Board would have brought the lawsuit itself had it not been sued.
It therefore must be said that, but for plaintiffs' bringing the
lawsuit, the results of the initiative would have never been
published. The fee shifting statute is designed to create an
incentive for "private Attorney Generals" to bring meritorious
lawsuits by vindicating the citizens' rights when the government
may be incapacitated by political or budgetary considerations
from bringing them. Boos, 704 F. Supp. at 9. Plaintiffs fall
perfectly within that rubric and the interest in encouraging
lawyers to undertake litigation compels the conclusion that this
is not one of those rare cases where the award of fees is
Apportionment of Fees
It hardly follows that the Board is responsible for all of the
fees claimed. Although joint and several liability is urged by
plaintiffs, the court is obliged to "make every effort to achieve
the most fair and sensible solution that is possible."*fn2
Grendel's Den Inc. v. Larkin, 749 F.2d 945, 960 (1st Cir.
1984). Such an effort entails an apportionment of the fee
There is no single formula for determining fee apportionment in
a § 1988 action, and there is no relevant case law in this
Circuit. In other Circuits, the various apportionment factors and
methods employed have included: equal division among the
defendants; the jury's assessed actual damages; holding a
particular defendant who is solely or largely responsible for a
single claim liable for fees related to that claim; relative
culpability of the various defendants; and time spent by the
plaintiff in preparing the case against each defendant. See
generally Council for Periodical Distributors Associations v.
Evans, 827 F.2d 1483, 1487 (11th Cir. 1987) (citations omitted).
The last two of these factors are particularly appropriate in the
instant case. In Southeast Legal Defense Group v. Adams,
657 F.2d 1118 (9th Cir., 1981), the court considered the time spent
by plaintiffs' attorneys against a particular defendant. In that
case, as here, plaintiff had sued a federal and a state
defendant, and the federal defendant had been exempted from
liability for its share of attorney's fees. The District Court
then apportioned 75% of the total fees to the state defendants,
as they were the primary focus of the plaintiff's actions. The
Circuit Court subsequently affirmed this apportionment method,
noting that at least 75% of plaintiff's counsel's preparation was
directed towards the state defendants.
Adams, 657 F.2d at 1125. This time-spent approach was also
endorsed in Jenkins by Agyei v. State of Mo., 838 F.2d 260 (8th
Cir. 1988) and Nash v. Chandler, 848 F.2d 567 (5th Cir. 1988).
Under the time-spent approach, plaintiffs should be able to
recover no more than the fees and expenses incurred in opposing
the D.C. Board. Thus, the fees related to the preparation of the
complaint and all other work conducted prior to the Board's
request for a declaratory judgment on November 6, 1998, when it
effectively ceased opposing plaintiffs, are potentially
recoverable under this approach. A review of plaintiffs' exhibits
shows that Graham Boyd spent 69.9 hours on the matter up to and
including November 6. Art Spitzer and Aaron O'Toole spent 13.6
hours and 24 hours, respectively, on pre-November 7 matters.
Under the current edition of the matrix established in Laffey v.
Northwest Airlines, Inc., 572 F. Supp. 354 (D.D.C. 1983), these
figures amount to $25,590. Plaintiffs also seek to recover $569
in expenses incurred prior to November 8, bringing the total to
But plaintiffs do not deserve all of this amount because the
degree-of-culpability factor calls for a further reduction, as
the Board was not primarily responsible for the violation. As the
court in Evans wrote, "In cases such as the one now before the
court, however, it may be appropriate for a district court to
apportion fees between the active instigator of a wrong and a
more passive co-defendant who had a more peripheral or
ministerial role in the wrong." Id., at 1487. See also Jose P.
v. Ambach, 669 F.2d 865, 871 (2d Cir. 1982). Here, it is clear
that the United States was overwhelmingly responsible for
initially suppressing the election results, because it was
Congress that passed the legislation that restricted the Board's
ability to certify the ballot results. Considering that Congress
passed the Barr Amendment and, as I have explained, the Board's
initial position as to the Barr amendment was cautious but not
unreasonable, I will apportion the fees 90% to the United States
and 10% to the Board. Thus, plaintiffs shall be awarded $2,616 in
fees and expenses, which is 10% of their fees incurred as of
November 6, 1998.
Fees on Fees Liability
In addition to the liability for fees incurred in litigating
the plaintiff's claim, I must also determine the "fees on fees"
liability for time spent preparing the fees petitions. The
following chart indicates the hours spent by each of the
plaintiffs' attorneys in preparing briefs on the fees motions.
These figures are gleaned from plaintiffs' attorneys fees briefs.
The fourth column, "Hours Spent on Unspecified Fees," represents
fees work where the plaintiffs failed to distinguish between the
§ 1988 claims and the EAJA claims.
Hours Hours Hours Total For
Spent on Spent on Spent on Verified
EAJA 42 U.S.C. Unspecified Hours on Total for Unspecified
Attorney Fees 1988 Fees Fees Rate 1988 Hours
Graham Boyd 33.1 245 $8,109.50
Alicia Young 31 9 86.5 160 $1,440 $13,840
Arthur Spitzer 6.5 7.2 350 $2,275 $2,520
Aaron O'Toole 0 0 160
Plaintiffs seek a total of $33,140.50 for their services in
litigating the fees motions. Right away, I shall strike $4,960
from this total, which represents Alicia Young's 31 hours
researching EAJA issues, as plaintiffs cannot possibly expect to
bill the District for arguments that were applicable only to the
United States and that did not prevail in the first place. Thus,
I am left to consider the remaining $28,184.50, which represents
$3,715 of work that is attributed solely to the § 1988 claim and
$24,469.50 of unspecified fees work that is not discretely
attributed by plaintiffs to either the EAJA claim or the § 1988
The unspecified hours spent on the fees motions present the
more difficult questions with regard to fees liability. One
approach would be to deny all of this portion of the fees
application, on the grounds that plaintiff should have been more
diligent in documenting the allocation of time between the two
separate claims. But this seems unduly harsh, given that
plaintiffs cannot reasonably be expected to have foreseen the
ultimate importance of this allocation. The more sensible
approach is to apportion the hours spent on the fees motions
according to the respective length of each portion of plaintiffs'
motions. This makes intuitive sense, as the relative length of
the brief sections is a rough coefficient of the relative time
spent researching and editing those sections.
The plaintiffs' April 10th, 2000, motion for fees runs 24
pages. Of these, seven pages cover the § 1988 fees claim, while
over 11 pages address the EJEA claim.*fn3 In the plaintiffs'
Reply in support of their fees motion, roughly nine pages cover
their claim to fees under § 1988 (1994), while eight pages cover
fees under the EAJA statute. In total, of the 35 combined
substantive pages from the two briefs, 16, or 46%, address §
1988. Forty-six percent of $24,469.50 is $11,256. Adding in the
$3,715 attributed solely to the § 1988 fees claim, I arrive at a
total of $14,971 that can fairly be attributed to the § 1988
But this does not mean that plaintiffs deserve $14,971. Rather,
I shall reduce this figure by 90%, because I found D.C. liable
for only 10% of the fees incurred in the period prior to November
6, 1998. This reduction in the fees on fees award is entirely
appropriate, given plaintiffs' lack of success in its motion for
fees against D.C. See Ustrak v. Fairman, 851 F.2d 983 (7th Cir.
1988). It would make little sense to fully reward plaintiffs for
their efforts in arguing an essentially unsuccessful fee motion.
Ten percent of $14,971 equals $1,497, and this amount shall be
paid by the Board. to plaintiffs.
Added to the $2,616 in liability for the pre-November 7th
substantive work, plaintiffs' total fees award shall be $4,113.
A separate order accompanies this Memorandum Opinion.
In accordance with the Memorandum Opinion issued today, it is
ORDERED that Plaintiff's Motion for Attorneys' Fees and
Expenses [#61] is GRANTED IN PART and DENIED IN PART as to
the District of Columbia Board of Elections. It is further
ORDERED that defendant District of Columbia Board of
Elections and Ethics pay plaintiffs $4,113.00