UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


NATL BLACK PLCE ASSN

v.

DC BD ELECT ETHICS


98-7120a

D.C. Cir. 1999


*	*	*


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


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




__________

n 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


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




__________

n 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 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 




__________

n 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.


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


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


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


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


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.