                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2002

Planned Parenthood v. Atty Gen NJ
Precedential or Non-Precedential: Precedential

Docket No. 01-2581




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PRECEDENTIAL

       Filed July 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-2581

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY;
HERBERT HOLMES, M.D.; DAVID WALLACE, M.D.;
GERSON WEISS, M.D., ON BEHALF OF THEMSELVES
AND THEIR PATIENTS

v.

*THE ATTORNEY GENERAL OF THE STATE OF
NEW JERSEY; NEW JERSEY BOARD OF MEDICAL
EXAMINERS; THE COMMISSIONER OF THE
NEW JERSEY DEPARTMENT OF HEALTH AND
SENIOR SERVICES

**NEW JERSEY LEGISLATURE, by and through,
DONALD T. DIFRANCESCO, in his capacity as President
of the New Jersey Senate and as the Representative of the
New Jersey Senate; JACK COLLINS, in his official capacity
as Speaker of the New Jersey General Assembly and as
the Representative of the New Jersey General Assembly
(Intervenor in D.C.), Appellants

*(Amended Pursuant to F.R.A.P. 43(c)(2))
**(Amended in accordance with Clerk’s Order
dated 12/12/01)

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 97-cv-06170)
District Judge: Honorable Anne E. Thompson




Argued: March 7, 2002

Before: BECKER, Chief Judge, ALITO and
RENDELL, Circuit Judges.

(Filed July 11, 2002)

       RICHARD F. COLLIER, JR.,
        ESQUIRE (ARGUED)
       DAVID J. TREIBMAN, ESQUIRE
       Collier, Jacob & Mills
       580 Howard Avenue
       Corporate Park III
       Somerset, NJ 08873

       Counsel for Appellants

       LEON FRIEDMAN, ESQUIRE
        (ARGUED)
       148 East 78th Street
       New York, NY 10021

       DARA KLASSEL, ESQUIRE
       Planned Parenthood Federation
        of America
       810 Seventh Avenue
       New York, NY 10019

       TALCOTT CAMP, ESQUIRE
       LOUISE MELLING, ESQUIRE
       Reproductive Freedom Project
       American Civil Liberties
        Union Foundation
       125 Broad Street, 18th Street
       New York, NY 10004-2400

       ED BAROCAS, ESQUIRE
       American Civil Liberties Union of
        New Jersey Foundation
       35 Halsey Street, Suite 4B
       Newark, NJ 07102

       Counsel for Appellees

                                2


OPINION OF THE COURT

BECKER, Chief Judge:

This action was instituted by Planned Parenthood of
Central New Jersey, Herbert Holmes, M.D., David Wallace,
M.D., and Gerson Weiss, M.D. (the "plaintiffs") against, inter
alia, the New Jersey Legislature, challenging the
constitutionality of and seeking a permanent injunction
against the enforcement of the New Jersey Partial-Birth
Abortion Ban Act of 1997 (the "Act"), ch. 262., 1997 N.J.
Sess. Law Serv. 871-71 (West), codified at N.J. Stat. Ann.
S 2A:65A-5 to 7. The plaintiffs prevailed, and the District
Court awarded them $522,992.84 in attorneys’ fees
pursuant to 42 U.S.C. S 1988. The Legislature appeals the
fee award, raising objections as to the amount of the award
and the procedures followed in making it. The appeal also
presents two questions of first impression for us: (1)
whether a local rule that extends the time for filing a fee
application beyond that prescribed in Fed. R. Civ. P. 54(d)
is valid as a standing order within a proviso of that rule;
and (2) whether the New Jersey Legislature is immune from
liability for attorneys’ fees, given that it was solely
responsible for the defense of the legislation at issue.

We answer the first question in the affirmative,
concluding that District of New Jersey Local Rule 52(a) is
an "order of the court" for purposes of an exception in Fed.
R. Civ. P. 54(d), thereby extending the time to file a fee
application. Since the plaintiffs filed their fee application
within the time prescribed in the local rule, we affirm the
District Court’s order granting the plaintiffs’ requested
extension of the time to file their fee petition without motion
or notice, as is allowed under Fed. R. Civ. P. 6(b)(1).

We answer the second question in the negative. We
conclude that, while legislatures enjoy immunity for
promulgating statutes, it makes little sense to provide them
with this immunity when they step out of that role, as the
New Jersey Legislature did here when it intervened to
defend the constitutionality of the Act. We therefore hold
that when a legislature steps out of its role and intervenes

                                  3


to defend a piece of (its) legislation, which the executive
branch is not willing to defend, it becomes the functional
equivalent of a defendant in the case and may be liable for
attorneys’ fees.

With respect to the defendants’ other contentions, we
affirm in part and vacate in part, remanding for
development of the record and further factual findings,
including the clarification of the District Court’s award of
25.5 hours of moot court time in preparation for oral
argument, which does not seem justified by the present
record. We reverse outright the District Court’s award of
fees for "observing" this Court during oral argument,
concluding that there can be no recovery of attorneys’ fees
for such activity.

I. Facts and Procedural History

On December 15, 1997, the plaintiffs filed a complaint
challenging the constitutionality of the Act under 42 U.S.C.
SS 1983 and 1988, seeking declaratory and injunctive relief,
and naming the Attorney General, in his official capacity,
the New Jersey Board of Medical Examiners, and the
Commissioner of the Department of Health and Senior
Services as defendants. The Act had been passed by the
Legislature in June 1997. After the then-Governor,
Christine Todd Whitman, vetoed it on the ground that it
was unconstitutional, the Legislature overrode the veto,
giving the Act immediate effect. The named defendants
declined to defend the Act, but put the plaintiffs"on notice
that [the Act] is the law of the State of New Jersey. The
Attorney General has not advised physicians . . . not to
comply with this law." On December 16, 1997, one day
after the complaint was filed, the Legislature alerted the
District Court of its intention to intervene "to vigorously
defend the constitutionality of the Act." The District Court
issued a temporary restraining order enjoining enforcement
of the Act, granted the Legislature’s formal motion to
intervene, and, with the parties’ consent, extended the
temporary restraining order until final resolution of the
case.

After a four-day trial, the District Court entered a final
judgment in favor of the plaintiffs and, on December 8,
                                4


1998, permanently enjoined the defendants from enforcing
any provision of the Act. On December 17, 1998, the
Legislature announced its intent to appeal. On December
24, 1998, more than 14 days after the judgment, which is
the time period prescribed for the filing of a fee petition
under Fed. R. Civ. P. 54(d)(2)(B), the plaintiffs moved for an
extension of time to file their fee application. Based on its
own local rule, which provided a 30-day deadline with the
possibility of an extension, the District Court entered an
order extending the time to file for attorneys’ fees until 30
days after the conclusion of all appeals in the case. On
January 5, 1999, the Legislature moved to vacate the
extension of time and to strike the plaintiffs’ fee application
as untimely. The District Court denied this motion.

This Court affirmed on the merits and entered its
judgment on July 26, 2000. See Planned Parenthood v.
Farmer, 220 F.3d 127 (3d Cir. 2000). On August 1, 2000,
the plaintiffs asked the District Court to clarify its
December 24, 1998 order, which allowed them to file their
fee application within "thirty days after the latest of: (1) the
expiration of Defendants-Intervenor Appellant’s time to file
a petition for certiorari to the United States Supreme Court;
(2) the denial of a petition for certiorari by the United States
Supreme Court; or (3) the granting of a petition for
certiorari and disposition of this case by the United States
Supreme Court." By letter dated August 15, 2000, the
District Court stated that the plaintiffs "have correctly
understood the deadline."

On November 21, 2000, the plaintiffs filed their fee
application in the District Court. The Legislature filed
opposition papers, arguing that it was immune from
liability for fees and that the fee application was both
untimely and excessive. The District Court heard oral
argument, and rejected the Legislature’s arguments with
respect to both immunity and untimeliness. The District
Court found that the plaintiffs were prevailing parties under
S 1983, filed an opinion and order rejecting the Legislature’s
objections, and granted the plaintiffs the requested
$522,992.84 in attorneys’ fees for the District Court trial,
the appeal to this Court, and work performed on the fee
application. The Legislature filed a timely Notice of Appeal,

                                5


challenging the District Court’s order extending the time for
the plaintiffs to file their fee application; its determination
that the New Jersey Legislature was not immune for
liability for fees and costs; and the award of fees. We have
jurisdiction over the appeal pursuant to 28 U.S.C.S 1291.

II. Timeliness of the Fee Applications

The threshold issue, which is purely a question of law, is
whether the plaintiffs’ initial request for an extension of
time on their fee application was timely. A decision to grant
an extension of time pursuant to Fed. R. Civ. P. 6(b) is
reviewed for abuse of discretion. Dominic v. Hess Oil V.I.
Corp., 841 F.2d 513, 516 (3d Cir. 1988). The legal
interpretation of a procedural rule is reviewed de novo.
Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000).

Fed. R. Civ. P. 54(d), which governs the awarding of
attorneys’ fees, states:

       Unless otherwise provided by statute or an order of the
       court, the motion must be filed and served no later than
       14 days after entry of judgment; must specify the
       judgment and the statute, rule, or other grounds
       entitling the moving party to the award; and must state
       the amount or provide a fair estimate of the amount
       sought.

(emphasis added). The plaintiffs filed their request for an
extension of time on December 24, 1998, more than 14
days after the judgment was entered on December 8, 1998.
The District Court held that the motion was not time-
barred, and granted the extension, relying on District of
New Jersey Local Rule 54.2(a), which provides:

       In all actions in which a counsel fee is allowed . .. , an
       attorney seeking compensation for services or
       reimbursement of necessary expenses shall file with
       the Court an affidavit within 30 days of the entry of
       judgment or order, unless extended by the Court . . . .

The Federal Rule, on its face, applies "[u]nless otherwise
provided by . . . [an] order of the court." Fed. R. Civ. P.
54(d).

                                6


According to the District Court, Local Rule 54.2(a)
constituted an "order of the court" and thereby extended
the time under Rule 54(d)(2)(B).1 The Legislature disagrees,
arguing that the local rule is not an "order of the court." In
its submission, District of New Jersey Local Rule 54.2(a)
conflicts with Fed. R. Civ. P. 54(d)(2)(B), and because a local
rule may not conflict with an applicable federal rule, see 28
U.S.C. S 2071(a) and Fed. R. Civ. P. 83(a)(1), the New Jersey
local rule is invalid. See Anchorage Assocs. v. Virgin Islands
Bd. of Tax Review, 922 F.2d 168, 173 (3d Cir. 1990)
("District courts are authorized to prescribe rules for the
conduct of court business so long as those rules are
consistent with the Acts of Congress and the Federal Rules
of Procedure.").

The Legislature further contends that, because the
motion for an extension of time was not timely under Fed.
R. Civ. P. 54(d)(2)(B), the District Court abused its
discretion in granting an extension by signing the order on
the same day it received the plaintiffs’ request without
providing the Legislature with an opportunity to be heard
pursuant to Fed. R. Civ. P. 6(b)(2) before it acted on the
motion. The plaintiffs respond that because the District of
New Jersey Local Rule 54.2(a) is an "order of the court," it
qualifies as an exception to the limitations period in Fed. R.
Civ. P. 54(d)(2)(B). Thus, the plaintiffs submit that the
District Court acted within its discretion in granting the
extension of the time to file without notice or motion, as is
allowed under Fed. R. Civ. P. 6(b)(1).

Every Court of Appeals to have addressed the issue has
decided that a local rule extending the time to file a motion
for fees is a "standing order," and, therefore, not
inconsistent with the federal rules. See Tire Kingdom, Inc. v.
Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.
2001); Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th
Cir. 1999); Eastwood v. Nat’l Enquirer, 123 F.3d 1249,
_________________________________________________________________

1. We note in this regard that the rule in question was part of the corpus
of the Local Civil and Criminal rules that were the subject of
renumbering "to correspond to their counterparts in the Federal Rules of
Civil and Criminal Procedure," which were adopted by the District Court
in an Order dated April 1, 1997.

                                7


1257 (9th Cir. 1997); Johnson v. Lafayette Fire Fighters
Ass’n, 51 F.3d 726, 729 (7th Cir. 1995). The rationale of
the Fifth, Seventh, Ninth, and Eleventh Circuits is best
described in Johnson, which was the first case to decide the
issue and the case most cited by the other circuits in
support of their position:

       [A] local rule is an order of the court, at least for
       purposes of Fed. R. Civ. P. 54(d)(2)(B). Local rules are
       adopted by the majority of the judges in a district to
       govern the practice and procedure of litigation in that
       district. As such, local rules are, in effect, "standing
       orders," such that [they] should be viewed as an order
       of the court . . . . And while these standing orders
       generally cannot conflict with the Federal Rules of Civil
       Procedure, the Supreme Court and Congress have
       frequently used the federal rules to adopt default rules
       of procedure that are modifiable by the districts
       through the adoption of local rules. See, e.g. , Fed. R.
       Civ. P. 26(a)(1). We believe that the 14-day filing period
       contained in Fed. R. Civ. P. 54(d)(2)(B) is one such
       default rule and that the districts are free to modify the
       filing period through local rules.

        That our reading of Fed. R. Civ. P. 54(d)(2)(B) is the
       most logical reading of the rule, is made apparent after
       considering the prior law. Before the enactment of the
       1993 Amendments, districts were free to adopt local
       rules to govern the filing of fee petitions. See White v.
       New Hampshire Dep’t of Employment Security, 455 U.S.
       445 (1982). After White, many districts adopted local
       rules to govern the filing of fee petitions. . . . If the
       Supreme Court and Congress wanted to preempt these
       local rules they would have done so in definite terms
       that would not place practitioners in the difficult
       position of guessing what time period governed the
       filing of fee petitions. But Fed. R. Civ. P. 54(d)(2)(B)
       does not contain clear language stripping districts of
       their power to promulgate local rules to govern the
       filing of fee petitions. Rather, the rule contains the
       ambiguous phrase "order of the court," which we do
       not believe evidences the intent of the Supreme Court
       and of Congress to so fundamentally change the law in
       this area.

                                8


Johnson, 51 F.3d at 729.

The District Court followed the Seventh Circuit’s
reasoning when it concluded that there was no
inconsistency in this case:

       [P]laintiffs’ motion to extend time to file their fee
       application was timely because [the local rule is] an
       "order of the court" which extend[s] the 14-day limit
       contained in Fed. R. Civ. P. 54(d)(2)(B). The Paoli case
       [In re Paoli R.R. Yard PCB Litig., 221 F.3d 449 (3d Cir.
       2000)] applies to instances where a Local Rule is
       inconsistent with a Federal Rule. Fed. R. Civ. P.
       54(d)(2)(B) provides that the Federal Rule may be
       amended by an order of the court and therefore, there
       is no inconsistency in this case.

We agree, and conclude that District of New Jersey Local
Rule 54.2(a) is an order of the court for the purposes of
Fed. R. Civ. P. 54(d)(2)(B). Thus, we are satisfied that the
plaintiffs had 30 days within which to file their application
for attorneys’ fees (or, in this case, a motion to extend
time). This construction seems highly appropriate in view of
the nature of the proceeding. Consideration of fee petitions
is often an extremely involved and time-consuming exercise
that can be burdensome to a busy district court, and
district courts ought to have the flexibility to control their
own calendars with respect to such matters.

Reviewing the District Court’s decision to grant an
extension of time pursuant to Fed. R. Civ. P. 6(b) for abuse
of discretion, Dominic v. Hess Oil V.I. Corp. , 841 F.2d 513,
516 (3d Cir. 1988), we are satisfied that the District Court
did not abuse its discretion, pursuant to Fed. R. Civ. P.
6(b)(1), to grant the extension of time without motion or
notice since the request for the extension was timely
pursuant to Local Rule 54.2(a).2
_________________________________________________________________

2. The Legislature also raises an argument with respect to the timeliness
of the fee application for appellate work. The plaintiffs asked us to
remand for consideration of appellate fees to the District Court or,
alternatively, to extend the time for the plaintiffs to apply for fees. The
Clerk referred the motion to the merits panel, granting the plaintiffs "an
extension of time to file the petition for fees and costs until October 6,
                                9


III. Legislative Immunity

The Legislature is typically immune from liability under
42 U.S.C. S 1983 and thus cannot generally be held liable
for fees under 42 U.S.C. S 1988. Supreme Ct. of Va. v.
Consumers Union, 446 U.S. 719, 732-34 (1980). While
legislative immunity protects the Legislature in its
legislative capacity -- i.e., for promulgating the Act at issue
in this case -- we conclude that the Legislature is not
entitled to immunity in this case because defending the Act
was an act outside of its legislative capacity.

In May v. Cooperman, 578 F. Supp. 1308 (D.N.J. 1984),
aff ’d, 780 F.2d 240 (3d Cir. 1985), the District Court for
the District of New Jersey was faced with precisely the
issue that we must address. The New Jersey Legislature
enacted a "moment of silence" statute that overrode the
Governor’s veto. When May brought suit, the Attorney
General of New Jersey stated that he would neither defend
the constitutionality of the statute nor discipline teachers
_________________________________________________________________

2000 or until the panel issues an order deciding the motion, whichever
occurs earlier." The merits panel subsequently addressed the motion,
relegating "consideration in the first instance of appellate attorneys’ fees
and costs to the District Court." The application for attorneys’ fees for
appellate work was filed on November 20, 2000, along with the
application for District Court fees.

The Legislature argues that once the panel decided to remand to the
District Court, the plaintiffs had 30 days from that decision, rendered on
October 6, to file their fee application pursuant to L.A.R. Misc. 108.1(a).
We disagree, and are satisfied that the District Court was correct in
concluding that the application was timely filed. The motion filed by the
plaintiffs, seeking an extension or remand of the application for appellate
fees, requested that we remand to the District Court so that the issue of
fees and costs for appellate work could be "considered with -- and on
the same schedule as -- the issue of fees and costs for trial work." Since
the motion requested the remand, on the same schedule as the issue of
fees for trial work, which we granted, the logical interpretation of the
order granting the remand is that it granted the motion to file a single
fee request all on one schedule. Such an order is undoubtedly within our
power. Thus, the District Court did not abuse its discretion in holding
that the November 20, 2000 application was timely filed with respect to
appellate fees.

                                10


who refused to implement it. The Legislature intervened to
defend the statute and "took an active role in defense of the
statute, beginning the day the complaint was filed." 578 F.
Supp. at 1310. The district court subsequently awarded
fees against the Legislature after determining that the
statute was unconstitutional, concluding that it was not
entitled to immunity.
Conceding that the Legislature was immune for
promulgating the statute, see Consumers Union v. Virginia
State Bar, 688 F.2d 218 (4th Cir. 1982), the court reasoned
that the "Legislature sought to perform a task which
normally falls to the executive branch, but which, in this
case, the executive branch refused to perform." 578 F.
Supp. at 1316. In this sense, the intervening legislators
"abandoned their legislative role and took on a quasi-
enforcement role by intervening to defend the statute.
[Thus, t]heir legislative immunity should not protect them
when they step outside the function for which their
immunity was designed." Id. at 1317.

The May court also noted that this result made practical
sense:

       [T]he State defendants refused to defend the lawsuit
       because of a good faith belief that the statute was
       unconstitutional; the Legislature chose to intervene
       and litigate vigorously because of a strong interest it
       took in the statute. The result was that plaintiffs were
       put to extensive and costly litigation, but are unable to
       recover fees from the party from whom they would
       normally recover fees under S 1988. Were they also
       unable to recover from the defendant-intervenors, I
       believe the intent of the fee statute would be thwarted.

        If the Legislature were deemed immune, a major
       loophole would be created in the statutory scheme for
       reimbursing plaintiffs. Original defendants, otherwise
       liable for fees, could remain passive in S 1983 actions,
       leaving defense of the challenged laws to Legislatures
       or others claiming to possess immunity from fee
       liability. States, by this method, could defend
       constitutional challenges to their statutes without
       having to pay plaintiffs’ fees awards, which Congress

                                11


       has acknowledged to be "an essential remedy if private
       citizens are to have a meaningful opportunity to
       vindicate the important Congressional policies" which
       the civil rights laws contain. S. Rep. No. 94-1011, 94th
       Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. &
       Ad. News, 5908, 5909-10.

Id. at 1317-1318.

Although this issue was not reached on appeal when this
Court affirmed May, see May v. Cooperman , 780 F.2d 240
(3d Cir. 1985), we have subsequently indicated that this
rationale is persuasive. In Daggett v. Kimmelman , 617 F.
Supp. 1269 (D.N.J. 1985), the District Court for the District
of New Jersey followed the reasoning of May in awarding
attorneys fees against the New Jersey Legislature:

       [T]his court is . . . in accord with the analysis set forth
       in May v. Cooperman. The New Jersey Legislature was
       absolutely immune from an award of an attorney’s fee
       for enacting the Feldman Plan, but once the Legislature
       intervened to defend the statute, even if it did so
       because the executive branch refused to defend the
       statute, the Legislature took on a quasi-enforcement
       role, and gave up its immunity.

Daggett, 617 F. Supp. at 1279. On appeal to this Court, the
Legislature raised the issue of immunity, and we affirmed
the district court’s holding because the district court
"considered thoroughly" the contention and we agreed with
the District Court that the "contentions lack merit." Daggett
v. Kimmelman, 811 F.2d 793, 795 n.2 (3d Cir. 1987).

The Legislature argues that these cases were poorly
reasoned and are not valid precedent in light of
Independent Federation of Flight Attendants v. Zipes , 491
U.S. 754 (1989). Daggett, as a published opinion of this
Court, is binding upon us unless its validity was
undermined by Zipes, as is now argued. In Zipes, the
Supreme Court held that the Independent Federation of
Flight Attendants ("IFFA"), as intervenor, was not liable for
attorneys’ fees. Noting that "district courts should . . .
award . . . attorney’s fees against losing intervenors only
where the intervenors’ action was frivolous, unreasonable,
or without foundation," the Court concluded that it would

                                12


not impose liability on the IFFA because its "cases have
emphasized the crucial connection between liability for
violation of federal law and liability for attorney’s fees under
federal fee-shifting statutes." Id. at 761-62. The Court
concluded that the IFFA-intervenors were "blameless"
because they had not violated anyone’s civil rights.
Moreover, the IFFA became "a party to the lawsuit not
because it bore any responsibility for the practice alleged to
have violated [federal law], but because it sought to protect
the bargained-for seniority rights of its employees." Id. The
"central fact" for the Court was thus "that[IFFA] litigated
(and lost) not to avoid liability for violation of the law but to
prevent TWA’s bargaining away of its members seniority
rights in order to settle with respondents." Id. at 765-66.

The Legislature argues that Zipes is controlling to the
extent that it makes clear that the Legislature’s vigorous
defense of the Act does not make it liable for fees unless its
position was frivolous, unreasonable, or without foundation
because the "crucial connection between liability for
violation of federal law and liability for attorney’s fees under
federal fee-shifting statutes" is missing in this case. Id. at
762. The Legislature ignores a crucial distinction between
Zipes and this case. As we noted in Daggett , Zipes focused
on intervenors who entered the suit to protect the interests
of a third-party and a suit in which there was another
defendant who would be liable for the fees. As the District
Court in Daggett observed:

       I have serious doubts about the applicability of Zipes
       . . . . In Zipes, the Supreme Court reasoned that the
       intervenors were completely "blameless," having had no
       part in the constitutional violation of which plaintiffs
       complained, and intervened only to protect their own
       rights which were affected by a proposed settlement
       agreement between plaintiffs and defendants.
       Moreover, the Court reasoned that there were present
       in the action "guilty" defendants, who would be liable,
       in any event, for the counsel fees and costs incurred by
       plaintiffs. I question the defendants-intervenors’
       qualifications as "blameless" intervenors, in light of the
       vigorous battle fought defending an unconstitutional
       statute, and, in addition, cannot ignore the absence in

                                13


       this case of a "guilty" defendant who otherwise would
       be liable for these fees.

Daggett v. Kimmelman, 1989 WL 120742, at *7 n.6 (D.N.J.
July 18, 1989) (emphases added) (citations omitted).

Similarly, in Mallory v. Harkness, 923 F. Supp. 1546
(S.D. Fla. 1996) aff ’d, 109 F.3d 771 (11th Cir. 1997), the
district court awarded fees against the intervenor-Attorney
General and distinguished Zipes as follows:

        The Zipes Court concluded that making blameless
       intervenors liable for attorney’s fees simply did not
       further the purposes behind the fee shifting statutes.
       Thus, Zipes appears to establish the following rule:
       where a losing intervenor is "innocent," attorney’s fees
       will not be awarded against that intervenor unless the
       intervention was frivolous, unreasonable, or without
       foundation.

        The intervenor in Zipes, however, substantially differs
       from the AG in the case at hand. In Zipes, the
       intervenor entered the case late in the litigation to
       defend the rights of a third-party to the litigation . In
       contrast, the AG entered the case early in
       the proceedings and vigorously defended the
       constitutionality of the statute throughout the entire
       proceeding. It appears to the Court that the AG took all
       steps ordinarily taken by a defendant and, in fact,
       acted as the defendant in the case. Given these facts,
       characterizing the AG as an "innocent" or"blameless"
       intervenor would be inaccurate. The AG in the present
       case clearly played a pivotal role.

        The AG defended the unconstitutional statute
       voluntarily and in doing so attempted to aid in the
       offending statute’s enforcement.

923 F. Supp. at 1553 (emphasis added).

We are persuaded by the reasoning of these courts. While
legislatures enjoy immunity for promulgating statutes, it
makes little sense to provide them with this immunity when
they step out of that role. However, when a legislature feels
it necessary to perform what is generally regarded as an
executive function because the state executive branch

                                14


officials named as defendants in their official capacities
refuse to perform that function,3 the legislature is the
functional equivalent of a defendant in the case-- without
it, there would be no case. This is very different than the
situation contemplated in Zipes, where the intervenor
sought to protect the interests of a third-party; regardless
of the intervenor, there was an underlying ongoing dispute
between the plaintiff and the defendant. To read Zipes as
contemplating situations like the one before us, and the
ones at issue in May, Daggett, and Mallory, would be an
over-extension of Zipes and would thwart the purpose of
the fee-shifting statutes. Moreover, we find the Legislature’s
reliance on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.
1989), to be misplaced, as we explain in the margin. 4 Thus,
_________________________________________________________________

3. In the federal system, the Attorney General defends the
constitutionality of an act of Congress whenever a reasonable argument
can be made in defense of the act. See "The Attorney General’s Duty to
Defend the Constitutionality of Statutes," 5 U.S. Op. Off. Legal Counsel
25, 1981 WL 30934. If the Attorney General is unable to defend an act
of Congress, the Senate Legal Counsel is notified and may undertake the
representation. See 2 U.S.C. S 288k.

If New Jersey had followed a similar regime and the defense of the
statute at issue had been performed by the state attorney general, the
state would not be immune from fees. However, New Jersey is not
required to follow the federal scheme. It is not obligated to maintain a
separation of powers mirroring that of the federal government. It is free
to assign what are generally regarded as executive functions to the
legislature, and that, in effect, is what has occurred in this case and the
other cases noted above in which the Legislature undertook the task of
defending the constitutionality of a state law. But New Jersey cannot
escape an obligation under federal law to pay attorneys’ fees by
assigning this function to the Legislature.

4. The Legislature relies on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.
1989), in support of its position that Zipes is controlling. In that case,
the plaintiffs sued the Chairman of the Committee of Bar Examiners of
the Virgin Islands in a challenge to the residency requirement. The Bar
Association intervened. Plaintiffs ultimately won and the Bar Association
disputed its liability for the fee award. This Court concluded that the
Association, as a blameless intervenor, was not liable since it had
imposed no additional burden on the defendant. The case before us is
different in that the presence of the Chairman as a defendant in
Thorstenn meant both that there was someone liable for the fees

                                15


we conclude that the Legislature is not entitled to immunity
in this situation, where it has stepped out of the role for
which immunity is provided.
IV. District Court’s Award of Fees

The Legislature raises several arguments with respect to
the award of attorneys’ fees: (1) whether the Court
adequately explained the basis for its decision; (2) whether
the District Court erred in failing to hold an evidentiary
hearing on the "reasonable hourly rate"; and (3) whether
the Court abused its discretion in determining what hours
were eligible for compensation. We review de novo the
standards and procedures applied by the District Court in
determining attorneys’ fees, as it is a purely legal question.
Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d
Cir. 1997). We review the findings of fact for clear error.
Washington v. Philadelphia County Ct. of Common Pleas, 89
F.3d 1031, 1035 (3d Cir. 1996). The reasonableness of a fee
award itself is reviewed for abuse of discretion, Loughner v.
Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001), but
a court abuses its discretion when its ruling is founded on
an error of law or a misapplication of law to the facts, Doe
v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 154 (3d Cir.
1999). For the reasons set forth in the margin, we agree
with the Legislature’s claim that the District Court erred in
determining the reasonable hourly rate, and we therefore
vacate and remand for an evidentiary hearing.5 We turn to
the remaining issues.
_________________________________________________________________

notwithstanding the fact that the Bar Association was not, and that the
claims raised by the Bar Association were duplicative of a present
defendant. In this case, there would have been no litigation without the
Legislature’s intervention and so the rationale of Thorstenn -- that the
intervenor "imposed no additional burden on plaintiffs in the litigation"--
is not applicable. 883 F.2d at 219-220.

5. A prevailing party in a S 1983 action is entitled to reasonable
attorneys’ fees and costs under 42 U.S.C. S 1988. A reasonable fee is one
"adequate to attract competent counsel, but which does not produce
windfalls to attorneys." PIRG v. Windall, 51 F.3d 1179, 1185 (3d Cir.
1995) (citation omitted). A reasonable hourly rate multiplied by a

                                16


A. Hours Expended

The Legislature contends that the District Court abused
its discretion by awarding fees for some of the hours that
the plaintiffs requested. For work to be included in the
calculation of reasonable attorneys’ fees, the work must be
" ‘useful and of a type ordinarily necessary’ to secure the
final result obtained from the litigation." Pennsylvania v.
Del. Valley Citizens’ Council, 478 U.S. 546, 561 (1986).

1. Award of Fees to be Vacated and Remanded

A district court "must explain on the record the reasons
for its decisions." Rode v. Dellarciprete, 892 F.2d 1177,
1187 (3d Cir. 1990); see also Pa. Envtl. Def. Found. v.
Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir. 1998)
("[T]he district court must provide a concise but clear
explanation of its reasons for [a] fee award.") (internal
quotation marks and citation omitted). "[I]f the district
court’s fee-award opinion is so terse, vague, or conclusory
that we have no basis to review it, we must vacate the fee-
award order and remand for further proceedings." Gunter v.
_________________________________________________________________

reasonable number of hours expended -- the "lodestar" -- is the
presumptively reasonable fee. Loughner v. Univ. of Pittsburgh, 260 F.3d
173, 177 (3d Cir. 2001); Hensley v. Eckerhart , 461 U.S. 424 (1983). A
reasonable rate is the prevailing market rate in the relevant community.
Loughner, 260 F.3d at 180. The Legislature contends that the District
Court failed to conduct an evidentiary hearing on the "reasonable hourly
rate" component of the lodestar and that this constitutes reversible error.
See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 131-32 (3d Cir.
2000) (relying on generalized sense of what is customary and proper in
calculating hourly rates rather than evidence was reversible error). We
have held that if "hourly rates are disputed, the district court must
conduct a hearing to determine the reasonable market rates." Smith v.
Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997); see also
Lanni v. State of N.J., 259 F.3d 146, 149 (3d Cir. 2001). The District
Court did not hold an evidentiary hearing, notwithstanding the fact that
such rates were disputed by the six affidavits filed by the Legislature.
Thus, the District Court committed reversible error, and we vacate the
award to that extent and remand to the District Court for an evidentiary
hearing on the reasonableness of the hourly rates sought by the
plaintiffs.

                                17


Ridgewood Energy Corp., 223 F.3d 190, 196 (3d Cir. 2000).
In addition, as noted above, see supra note 5, if "hourly
rates are disputed, the district court must conduct a
hearing to determine the reasonable market rates." Smith v.
Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir.
1997); see also Lanni v. State of N.J., 259 F.3d 149, 149 (3d
Cir. 2001). Because we conclude that the District Court’s
fee award with respect to the following challenged requests
are "vague" and "conclusory" -- thereby hindering our
ability to review them -- or because the hourly rate for the
work was challenged and no evidentiary hearing was held,
we will vacate the following fee awards and remand for
further proceedings. Id.

a. Delegable Tasks

The Legislature challenges 18.25 billed hours for tasks
that, it argues, could have easily been delegated to non-
professionals such as paralegals, secretaries, and couriers,
including such tasks as document review, exhibit
preparation, and reviewing citations. In Halderman v.
Pennhurst State School & Hosp., we stated:

        We have cautioned on a number of occasions that
       when a lawyer spends time on tasks that are easily
       delegable to non-professional assistance, legal service
       rates are not applicable. We cannot condone "the
       wasteful use of highly skilled and highly priced talent
       for matters easily delegable to non-professionals."
49 F.3d 939, 942 (3d Cir. 1995) (citation omitted). The
District Court concluded that it was not "convinced the
work should have been delegated to a non-professional."

While the plaintiffs submit that the District Court did not
abuse its discretion in concluding that these hours were
not easily delegable, we are unable to make a determination
based on the opinion of the District Court. The plaintiffs
point out that "it would be unreasonable to expect
attorneys to delegate every ministerial duty they perform
because ‘the time spent delegating the task could well
exceed the time spent by the attorney’ performing the task
herself," and that, "each of these tasks did not take up
much of the attorneys’ time." Marisol A. v. Giuliani, 111 F.

                                18


Supp. 2d 381, 395 (S.D.N.Y. 2000). However, we do not
know from the District Court opinion what tasks were at
issue here, and who performed these tasks -- either senior
or junior level attorneys. Moreover, there is an issue of the
appropriate hourly rate for the performance of such tasks,
which will require an evidentiary hearing. See supra note 5.
We therefore vacate and remand the award of fees for
delegable tasks pursuant to Gunter, supra.

b. Travel Time

Out-of-pocket expenses are included in the concept of
"attorneys’ fees" as "incidental and necessary expenses
incurred in furnishing effective and competent
representation," and thus are authorized by S 1988. See
Remarks of Congressman Drinan, 122 Cong. Rec. H12160
(daily ed. 1 Oct. 1976). The authority granted inS 1988 to
award a "reasonable attorneys’ fee" includes the authority
to award "reasonable out-of-pocket expenses . . . normally
charged to a fee-paying client, in the course of providing
legal services." Associated Builders & Contractors of La., Inc.
v. The Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.
1990). The Supreme Court held in Missouri v. Jenkins, 491
U.S. 274 (1989), addressing the "more difficult question [of]
how [additional out-of-pocket expenses are] to be valuated
in calculating the overall attorney’s fee," id. at 285, that
"the prevailing practice in a given community" is to govern
whether such out-of-pocket expenses are billed separately,
and whether they are billed at cost or at market rates. Id.
at 288.

Heeding the admonition in Jenkins, we have observed
that travel time is an out-of-pocket expense underS 1988
that is generally recoverable "when it is the custom of
attorneys in the local community to bill their clients
separately for [it]." Abrams v. Lightolier Inc., 50 F.3d 1204,
1225 (3d Cir. 1995) (looking to S 1988 cases to determine
whether to award out-of-pocket expenses in a case under
the New Jersey Law Against Discrimination). Implicitly
rejecting the contention of the defendants that travel time
is not compensable, the District Court awarded it, but there
is no indication that the District Court reviewed any
evidence that this was the custom in New Jersey-- the

                                19


relevant, local community -- as it should have. However,
the District Court’s ultimate conclusion was not in error, as
travel time is apparently compensable in New Jersey. See,
e.g., Abrams, 50 F.3d at 1225 (predicting that the New
Jersey Supreme Court would hold that travel time and
expenses are recoverable as party of an attorneys’ fee
award); H.I.P. v. Hovnania, 676 A.2d 1166, 1176 (N.J.L.
Div. 1996) (awarding fees for travel time).

The Legislature also challenges the rate at which such
travel time should be compensated. Again, this issue is
guided by Jenkins and the holding that a court must look
to the practice in the local community. In this case, the
District Court awarded fees for travel time billed at the
maximum rate, yet there is no indication that this is the
practice in New Jersey. The Legislature contends that the
hourly rate for travel time should be no more than $100.
See ARC v. Voorhees, 986 F. Supp. 261, 271-72 (D.N.J.
1997); H.I.P., 676 A.2d at 1176. We note, however, that in
the cases cited by the Legislature, the parties requested
$100 compensation for travel time and were awarded that
amount. This case presents a situation in which the hourly
rate for travel time is disputed. Therefore, the best course
of action is to remand for a determination of the
appropriate rate pursuant to Smith v. Philadelphia Housing
Auth., 107 F.3d 223, 225 (3d Cir. 1997) (concluding that if
there is a dispute as to hourly rates, the district court must
conduct a hearing to determine the reasonable market rate)
and Jenkins, 491 U.S. at 287-88 (concluding that "the
prevailing practice in a given community" is to govern
whether such out-of-pocket expenses are billed separately,
and whether they are billed at cost or at market rates).
Thus, while we agree that reasonable travel time may be
compensated, we vacate that aspect of the award, and
remand for an evidentiary hearing to determine the
appropriate hourly rate at which the plaintiffs should be
compensated.

c. Time Litigating the Fee Application.

A party entitled to an award of attorneys’ fees is also
entitled to reimbursement for the time spent litigating its
fee application. See Prandini v. Nat’l Tea Co. , 585 F.2d. 47,

                                20


53 (3d Cir. 1978). However, as the Supreme Court observed
in Hensley v. Eckerhart, 461 U.S. 424 (1982), a "request for
attorney’s fees should not result in a second major
litigation." 461 U.S. at 437. The Legislature argues that the
amount of time devoted to the fee litigation and
compensated for by the District Court was excessive. In
addition, the Legislature challenges the District Court’s
conclusion that the hours billed to prepare the fee
application should be compensated at the same hourly rate
as the work performed on the merits of the case because
the application "involve[d] several complex issues and
extensive research."

Although the Legislature argued that the hours were
excessive, nowhere does the District Court address this
contention. In addition, there seems to be a conflict
between the Legislature and the plaintiffs as to how many
hours were actually claimed for compensation. The
Legislature contends that 61.7 hours were expended on the
initial fee papers and that 64.5 hours were spent on the fee
litigation that arose out of the initial request for fees. As we
read the record, the plaintiffs requested 29.3 hours on the
initial petition and 64.5 hours for litigating the fee petition.
However, it is not clear from the District Court’s opinion
precisely for how many hours the plaintiffs were
compensated in the award for time spent on the fee
application. Because the District Court performed scant
analysis, if any, of the hours, there are no findings on the
reasonableness of the plaintiffs’ claim. Thus, we"have no
basis for determining the reasonableness or accuracy" of
the District Court’s award. Loughner v. Univ. of Pittsburgh,
260 F.3d 173, 179 (3d Cir. 2001).

In addition, with respect to the Legislature’s contention
as to the appropriate hourly rate for work on the fee
petition, all that was said by the District Court is that the
hours will be compensated at the same hourly rate as the
work performed on the merits. Yet, as we have previously
stated, a district court must hold an evidentiary hearing
when rates are disputed. Smith v. Philadelphia Housing
Auth., 107 F.3d 223, 225 (3d Cir. 1997).

We will vacate the award of fees for work performed on
the fee petition and remand for further proceedings

                                21


pursuant to Gunter, supra, and we also remand for an
evidentiary hearing to determine the hourly rate pursuant
to Smith, 107 F.3d at 225.

d. Oral Argument Preparation

The Legislature argues that the District Court abused its
discretion in awarding 121 hours for preparation for the
oral argument for the merits appeal. Included in these
hours are 25.5 hours of moot court time and 4.5 hours of
observing oral argument before this Court. The District
Court held that it could not "conclusively find that [those
hours] were unreasonable and unnecessary. Furthermore,
the Court does not find the additional hours billed by
plaintiffs preparation of the appeal to be excessive as
plaintiffs were required to respond to thirteen (13) issues
listed by the Legislative Defendants for appeal."

In Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001),
we stated:

       A reasonable fee for hours spent preparing for a legal
       argument should be limited to hours reasonably
       necessary for a lawyer to become familiarized with the
       facts and the law pertaining to the issue to be argued,
       an analysis of the opponent’s argument, and questions
       anticipated to be posed by the court. Under the fee
       shifting statute, the losing party is expected to pay for
       hours reasonably spent in the argument and its
       preparation, but not for excessive hours, or hours spent
       in learning or excessively rehearsing appellate
       advocacy.

256 F.3d at 187 (emphasis added). Under Maldonado, time
spent rehearsing oral advocacy, i.e., "moot court," may be
compensated as long as the time requested is not
"excessive." The District Court made no mention of
Maldonado, deciding instead that it could find no reason
why these hours were "unreasonable" or "unnecessary." Yet
25.5 hours of moot court time seems excessive within the
meaning of Maldonado. Even assuming that an oral
argument is 30 minutes per side, 25.5 hours would enable
a lawyer to practice his argument over 50 times. We
assume that litigators have a baseline competency in oral

                                22


advocacy that does not require such extensive rehearsal at
the possible expense of an opposing litigant. We will
therefore vacate this award of fees, remanding to the
District Court for a determination of the reasonable number
of hours for which the plaintiffs may be compensated.

In addition, while Maldonado permits compensation for
preparing for oral argument, we will not permit
compensation for observation of the Court to which
argument will be made. While such observation may be
generally instructive, it is the kind of thing that should be
part of a lawyer’s general experience, not charged to a
specific case. Therefore we will vacate the District Court’s
award of such fees.

As for the remaining 61 hours, to which there is only a
generalized exception, the District Court noted that the
plaintiffs were "required to respond to thirteen (13) issues
listed by the Legislative Defendants for appeal." While the
plaintiffs are certainly entitled to compensation for hours
that are not "excessive" under Maldonado , given the generic
nature of both the challenge to such fees and the
determination that they are reasonable, we "have no basis
for determining the reasonableness or accuracy" of the
District Court’s award although we are here faced with a
challenge to it. Loughner v. Univ. of Pittsburgh , 260 F.3d
173, 179 (3d Cir. 2001). We will therefore vacate the award
of fees for the remaining 61 hours spent preparing for oral
argument and remand for further proceedings.

e. Researching and Writing Briefs
The District Court approved 365 hours for briefing in the
District Court and 564 hours for briefing the merits appeal.
The District Court found "the hours [sought] regarding
preparation of briefs to be reasonable given the complex
and unprecedented nature of this action." In addition, the
District Court noted that "counsel for the Legislative
Defendants billed substantially more hours than[those for
which] plaintiffs seek reimbursement." Indeed, the
Legislature billed 902 hours for the merits appeal.
According to the District Court, this supported its
determination that the plaintiffs’ request for compensation
was reasonable, especially given the nature of the case.

                                  23


On appeal, the Legislature’s argument consists of nothing
more than the following retort to the District Court’s
conclusion:

       All plaintiffs had to do -- and all they did -- was rely
       on existing abortion jurisprudence and insist that
       partial-birth abortions are no different from other
       abortions. Nothing ‘complex’ or ‘unprecedented’ was
       involved. The Legislature did the heavy lifting, so it is
       no surprise that its attorneys billed more time.

While we disagree with the Legislature’s contention that
this was "all" that the plaintiffs had to do, we do think that
the amount of hours spent briefing is excessive. However,
the District Court’s opinion offers no basis for review. See
Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 179 (3d Cir.
2001). Pursuant to Gunter, supra, we will vacate the award
of fees for time spent on briefing this case, both in the
District Court and in this Court, and remand for further
proceedings.

2. Award of Fees to be Affirmed

The fee awards to be discussed in this segment of the
opinion are supported by "a concise but clear explanation"
of the District Court’s reasons for the fee award. See Pa.
Environ. Def. Foundation v. Canon-McMillan School Dist.,
152 F.3d 228, 232 (3d Cir. 1998). Moreover, we agree with
the District Court that the plaintiffs’ work in the areas
described infra was " ‘useful and of the type ordinarily
necessary’ to secure the final result obtained from the
litigation." Pennsylvania v. Del. Valley Citizens’ Council, 478
U.S. 546, 561 (1986) (citation omitted). In addition to the
arguments we will discuss, the Legislature also makes an
argument that the District Court erred in holding that the
description of the work done during 391.75 hours out of
the total number of hours billed were specific enough for an
award of fees. We explain our disagreement with the
Legislature on this point in the margin.6
_________________________________________________________________

6. A fee petition must be specific enough for a court "to determine if the
hours claimed are unreasonable for the work performed." Washington v.
Philadelphia County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir.

                                24


a. The Expert Who Did Not Testify

The Legislature argues that 120 hours of work performed
by an expert, Dr. Carolyn Westhoff, was not useful and no
fees should be awarded for time spent preparing her for
testimony when she was, in fact, never called to testify. The
District Court concluded that the time spent on Dr.
Westhoff was "compensable as it was both successful and
useful to the Court in formulating its findings of fact." See
Planned Parenthood v. Verniero, 41 F. Supp. 2d 478, 483
n.1 (D.N.J. 1998) (district court merits decision relying on
declaration of Westhoff). The plaintiffs spent approximately
120 hours on work relating to Westhoff ’s anticipated trial
testimony, but she never testified, as the District Court
observed, because "when time ran over [she] could not be
rescheduled as a result of scheduling conflicts." Instead,
Dr. Westhoff ’s declaration was admitted into evidence in
redacted form and then relied upon in the findings of fact.

The plaintiffs not only prepared Dr. Westhoff for a two-
phase deposition taken by the Legislature, but also
successfully opposed the Legislature’s motion to exclude
her testimony, and prepared her for direct and cross-
examination. As noted above, the day her examination was
scheduled, testimony ran over and because of the
schedules of the court, the Legislature’s witness, and Dr.
_________________________________________________________________

1996) (internal quotation marks and citation omitted). As we have
observed:

       [A] fee petition should include "some fairly definite information as to
       the hours devoted to various general activities, e.g., pretrial
       discovery, settlement negotiations, and the hours spent by various
       classes of attorneys, e.g., senior partners, junior partners,
       associates." However, "it is not necessary to know the exact number
       of minutes spent nor the precise activity to which each hour was
       devoted nor the specific attainments of each attorney."

Id. at 1037-38 (quoting Rode v. Dellarciprete, 892 F.2d 1177
(3d Cir. 1990)). We have reviewed the time entries that the
Legislature complains about and agree with the District
Court that these entries are sufficiently specific. We
therefore affirm the District Court’s award of fees for those
hours.

                                25


Westhoff, rescheduling was difficult and a stipulation was
negotiated whereby twenty-seven of the thirty-six
paragraphs in her declaration were admitted instead of live
testimony.

The plaintiffs’ preparation was necessary since they could
not have known that Dr. Westhoff was not going to testify
and could not have announced their intention to admit the
declaration without the Legislature’s having the opportunity
to depose her and agree not to cross-examine her.
Moreover, her work product was used in the trial. In light
of the aforementioned, the District Court did not abuse its
discretion in concluding that the attorneys did not waste
time on the work they did with respect to Dr. Westhoff, and
that such work was compensable within the meaning of
Delaware Valley, supra, and we therefore affirm the award
of these fees.

b. The Unsuccessful Summary Judgment Motion

Included in the fee award are 123.8 hours spent
preparing a summary judgment motion that was never
accepted for filing and was never considered on the merits.
The District Court concluded that this time was
compensable since the plaintiffs "relied" on their summary
judgment brief, upon order of the District Court, instead of
filing a post-trial brief, which made the work on the motion
"necessary," "successful," and "useful." We conclude that
the District Court did not abuse its discretion in
determining that these hours were compensable and that
its explanation was clear, concise, and, therefore, sufficient.
Since the summary judgment brief was eventually
submitted in lieu of a pre-trial brief, and a post-trial brief,
the work was certainly "necessary" and "useful," and we
therefore affirm the award of fees.

c. "Learning Curve" Time

The District Court permitted recovery of fees for 19.5
hours spent by newly-assigned attorneys getting"up-to-
speed" on the plaintiffs’ case. As the District Court stated,
"While the Court agrees that the losing party should not be
expected to pay for the time a prevailing party spends

                                26


coming up to speed on an area of law it is unfamiliar with,
the time a party spends reviewing the facts and underlying
documents of a case is compensable." We agree. The
Legislature cites authority for the proposition that hours
billed as a result of "re-staffing" the case at will cannot be
recovered, see, e.g., Marisol A. v. Giuliani, 111 F. Supp. 2d
381, 395-96 (S.D.N.Y. 2000) (decreasing award of fees
because of excessive turnover), but that case is
distinguishable because there was no excessive re-staffing
here.

In short, there is no indication that these attorneys were
not "necessary" to securing the outcome in the case. As
such, it would be "necessary" for them to spend time
getting "up-to-speed" on the case to be of assistance. In
addition, 19.5 hours is not much time for two attorneys
who are getting up-to-speed on a fairly complex and high-
profile case. We find no abuse of discretion, and therefore
affirm this aspect of the fee award.
d. Alleged Overstaffing

The Legislature submits that the plaintiffs’ case was
overstaffed and that the District Court erred in rejecting the
Legislature’s objection to multiple billings. The District
Court concluded that:

       the complexity and specialized medical knowledge
       necessary for the proper presentation of this case
       warranted the utilization of multiple attorneys. . ..
       Plaintiffs’ case was efficiently staffed . . . .[C]ounsel
       were assigned specific tasks . . . . Given that this case
       was essentially a case of first impression and that the
       issues involved were complex and very technical, the
       Court finds plaintiffs’ staffing of multiple attorneys to
       be reasonable and necessary to provide adequate
       representation for plaintiffs.

The District Court also found that, even when an attorney
was not addressing questions to a witness or presenting
argument to the court, counsel "provided necessary support
for each other."

We have written that, "[i]n many cases, the attendance of
additional counsel representing the same interests as the

                                27


lawyers actually conducting" the litigation is"wasteful and
should not be included in a request for counsel fees from
an adversary." Halderman v. Pennhurst State Sch. & Hosp.,
49 F.3d 939, 943 (3d Cir. 1995). We have thus often
disallowed compensation for more than one lawyer
performing either trial or office work. See, e.g., Lanni v.
State of N.J., 259 F.3d 146 (3d Cir. 2001). However, we
conclude that the District Court did not abuse its discretion
in rejecting the Legislature’s claim of overstaffing. This case
presented multiple, complex legal questions and was an
issue of first impression, decided prior to the Supreme
Court’s decision in Stenberg v. Carhart, 530 U.S. 914
(2000), in which the Court struck down the Nebraska
partial birth abortion statute similar to the one at issue in
this case. Given the nature of the case, even the Legislature
found it necessary to use "other partner-level attorneys"
and "associates, law clerks and paralegals." Quite simply,
the magnitude of the case mandated the help of numerous
attorneys for both parties.

Moreover, plaintiffs’ declarations establish appropriate
staffing by demonstrating that the various attorneys were
assigned specific tasks. Even if the attorneys had worked
on similar tasks, this would not be per se duplicative. As
the First Circuit has noted, "[c]areful preparation often
requires collaboration and rehearsal." Rodriguez-Hernandez
v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1988); see
also Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 358-59
(8th Cir. 1997) (refusing to reduce hours for multiple
counsel). Given the nature of the case, and, as noted by the
District Court, "the complexity and specialized medical
knowledge necessary for the proper presentation of this
case," we cannot say that the District Court clearly erred in
concluding that plaintiffs’ case was not overstaffed. We
therefore affirm the District Court’s award of these fees.

V. Conclusion

We conclude that the District of New Jersey Local Rule
52(a) is an "order of the court" for purposes of Fed. R. Civ.
P. 54(d), thereby extending the time to file a fee application.
Thus, we affirm the District Court’s order granting the
plaintiffs an extension of time to file their fee application.

                                28


We also conclude that when a legislature steps out of its
traditional role of promulgating statutes and intervenes to
defend the constitutionality of an act which the executive
branch is unwilling to defend, it becomes the functional
equivalent of a defendant and may be liable for attorneys’
fees.

We vacate the order and remand to the District Court for
an evidentiary hearing on the reasonable hourly rate. With
respect to the particular challenges to the fee award in this
case, we vacate the order and remand to the District Court
for development of the record and further factual findings
with respect to the award of fees for: 1) delegable tasks; 2)
travel time; 3) time spent on the fee petition; 4) oral
argument preparation; and 5) researching and writing
briefs. We affirm the District Court’s order awarding fees
for: 1) work performed by Dr. Westhoff; 2) the unsuccessful
summary judgment motion; 3) time spent by new attorneys
who were getting "up to speed" on the case; and 4) the so-
called "ambiguous" time entries.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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