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October 23, 2001


The opinion of the court was delivered by: Facciola, United States Magistrate Judge.


This matter is before me for resolution of plaintiffs' Motion for Attorneys' Fees and Expenses against defendant District of Columbia Board of Elections and Ethics ("the Board") and the intervenor and defendant, the United States. My Memorandum Opinion and Order of July 24, 2001, denied plaintiffs' motion with respect to the United States under the Equal Access to Justice Act, 28 U.S.C.A. § 2412(d)(1)(A)(1994)("EAJA"), and I now address the Board's liability under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.A. § 1988 (1994).


The underlying facts of this dispute have been detailed in Judge Roberts' Order of September 17, 1999. Turner v. District of Columbia Bd. of Elections and Ethics, 77 F. Supp.2d 25 (D.D.C. 1999). The Board placed on the ballot for the November, 1998, election an initiative that would afford seriously ill individuals the right to obtain marijuana without violating the criminal provisions of the D.C.Code. On October 21, 1998, however, Congress passed what has become known in this lawsuit as the Barr Amendment (after its sponsor), which prohibited the use of funds contained in the District of Columbia Appropriations Act to conduct any ballot initiative that sought to legalize the use of a controlled substance, including, of course, marijuana.

The billing entries submitted by plaintiffs' counsel indicate that on the very day the Barr Amendment was enacted, lawyers for the American Civil Liberties Union ("ACLU") began to formulate a legal challenge to the Amendment that they would ultimately bring on behalf of five registered voters on October 30, 1998. Plaintiffs named the Board as the only defendant.

Because the ballots had already been printed when the Barr amendment was enacted, District of Columbia voters voted on the initiative on election day, November 3, 1998. On that day the Board issued a press release explaining that it would not release the voting results of the initiative for fear of violating the Barr Amendment. Plaintiffs' Motion for Attorney's Fees and Expenses, Exhibit E.

On November 6, 1998, however, the Board filed a Motion of Defendant for Expedited Review and Declaratory Judgment, in which the Board asked this Court to declare that the Barr Amendment violated the "First Amendment rights of the voters of the District of Columbia." Id. at 1. The Board sought an order authorizing it to announce and certify the results of the vote on the marijuana initiative. On November 9, 1998, the United States asked that the application plaintiffs had filed for a temporary restraining order be denied. On November 23, 1998, the United States intervened to defend the Barr Amendment.

Ultimately, Judge Roberts concluded that the Barr Amendment did not preclude counting, announcing, and certifying the results of the marijuana initiative. In reaching that conclusion, Judge Roberts invoked the principle that a construction of a statute which avoids the resolution of constitutional issues is preferred and that, if the Barr Amendment precluded the counting, announcing, and certifying the results of the marijuana initiative, it would be of dubious constitutionality. Turner, 77 F. Supp.2d at 34.

By my order of July 24, 2001, I denied plaintiffs' fee petition on the grounds that plaintiffs had failed to meet the jurisdictional deadline EAJA imposes. Initially, plaintiffs took the position that the Board should be liable for "any amount of fees awarded under § 1988 that exceeds the amount awarded under EAJA." Order of July 24, 2001, at 15, quoting Plaintiffs' Motion for Attorney's Fees and Expenses at 23-24. In fairness to plaintiffs, I permitted them to discuss the validity of any award against the Board in light of my determination that plaintiffs could not recover any fees against the United States. Plaintiffs have responded by insisting that the Board is obliged to pay all the legal fees incurred from the commencement of the case until Judge Roberts' opinion plus the time spent litigating the validity of their petition for fees. Plaintiffs take this position even though plaintiffs and the Board sought a declaration that the Barr Amendment was unconstitutional, in the face of opposition from the United States.


Section 1988 empowers the district court, "in its discretion," to provide "[a] reasonable attorney's fee as part of the cost" to the prevailing party in any action brought under 42 U.S.C. § 1983. 42 U.S.C.A. § 1988(b)(1994). "[The] fee applicant bears the burden of establishing entitlement to an award, documenting the appropriate hours, and justifying the reasonableness of the rates." Covington v. District of Columbia, 57 F.3d 1101, 1107 (D.C.Cir. 1995) (quoting Hensley v. Eckhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).

I must first determine that the predicate requirements for 42 U.S.C.A. § 1988 (1994) are met insofar as plaintiffs were prevailing parties and the Board's actions were taken under color of state law. I will then determine whether the Board may be held jointly and severally liable for all the fees plaintiffs incurred; whether, as the Board claims, exceptional circumstances preclude the award of any attorney fees against it; and, if not, what portion of the fees should be paid by the Board.

Prevailing Party

One of the requirements for an award under ยง 1988 is that the applicant be a "prevailing party." District of Columbia v. Patterson, 667 A.2d 1338 (D.C. 1995). ...

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