
USCA1 Opinion

	




          August 17, 1993   UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 92-2339                              ERNEST PITOCHELLI, ET AL.,                                Plaintiffs, Appellee,                                          v.                                  TOWN OF JOHNSTON,                                Defendant, Appellant.                                _____________________                                     ERRATA SHEET               The opinion of this Court issued on July 6, 1993, is amended          as follows:               Strike the first full paragraph on page 6.               Strike "as modified" in the mandate paragraph on page 6.        July 6, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-2339                              ERNEST PITOCHELLI, ET AL.,                                Plaintiffs, Appellees,                                          v.                                  TOWN OF JOHNSTON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Thomas A. DiLuglio for appellant.            __________________            John A. Glasson for appellees.            _______________                                 ____________________                                 ____________________               COFFIN, Senior Circuit Judge.  Defendant appeals an award of                       ____________________          attorney's  and   expert  fees  granted  to   plaintiffs  at  the          conclusion of their successful  challenge to the voting districts          in the Town of Johnston, Rhode Island.  We decrease the amount of          the expert fees award but otherwise affirm.                                          I.               The Town  of Johnston  contains five councilmanic  districts          that, until this litigation, had not been redrawn since they were          adopted in 1963.   In June  1990, two registered voters  sued the          town pursuant to the Civil Rights Act of 1871, 42 U.S.C.    1983,          1985(3), to  effect reapportionment  in accordance with  the one-          person,  one-vote standard  of  Reynolds v.  Sims,  377 U.S.  533                                          ________     ____          (1964).  In their motion for a preliminary injunction, plaintiffs          sought immediate redistricting according to data collected in the          1980 census  or, alternatively,  electing all  seats  in 1990  at          large.    The district  court  determined  that the  councilmanic          districts were malapportioned and ordered the town to conduct at-          large  elections that year.  It did not yet require redistricting          because release of the 1990 census data was imminent and the town          could  not  reapportion  the  districts  without  postponing  the          elections.                 Once data from the  1990 census became available, plaintiffs          amended their  complaint to request redistricting  based on these          population  figures.   Finally,  in August  1992,  on the  eve of          trial, the town submitted  a reapportionment plan using  the 1990                                         -3-          census  data.   The plan,  with some  revisions, was  accepted by          plaintiffs and the court, and a consent judgment was entered.               Plaintiffs then moved for  attorney's fees, expert fees, and          costs,   totalling  $26,398.13.     The  town  objected,  arguing          primarily that  plaintiffs  were not  entitled  to a  full  award          because they  had not prevailed  on all of their  claims and that          the town was not  responsible for the malapportionment.   After a          hearing, the district court  awarded plaintiffs the entire amount          of their request.  This appeal followed.                                           II.               In an action  to enforce civil rights,  the prevailing party          may recover attorney's and expert fees.   42 U.S.C.   1988.1  The          determination  of whether a party  has prevailed and the decision          to  award  fees  is committed  to  the  sound  discretion of  the          district  court.    McDonald v.  Secretary  of  Health  and Human                              ________     ________________________________          Servs., 884 F.2d 1468, 1474 (1st  Cir. 1989).  The district court          ______          must   provide  a  clear  explanation  of  its  award  to  ensure          meaningful  review.  Grendel's Den, Inc. v. Larkin, 749 F.2d 945,                               ___________________    ______          950 (1st Cir. 1984).               The  town concedes  plaintiffs' entitlement  to an  award of          attorney's and expert fees.   At oral argument, it  also conceded          that plaintiffs are entitled to the full amount requested if they                                        ____________________          1  The retroactive applicability of the Civil Rights Act of 1991,          which  amended Section  1988  to allow  the  prevailing party  to          recover  expert fees,  currently  is pending  before the  Supreme          Court.   See  Landgraf v.  USI  Film Products,  113 S.  Ct.  1250                   ___  ________     __________________          (1993), granting cert. in part to, 968 F.2d 427 (5th  Cir. 1992).                  _________________________          We need not determine whether the Act applies to this proceeding,          however, because defendant has never raised the issue.                                         -4-          are found  to be the prevailing  party on all their  claims.  The          town  protests,  however, that  the  award  is excessive  because          plaintiffs did not succeed  in obtaining reapportionment based on          the 1980 census, as they originally requested.               A party prevails if it "`succeed[s] on any significant issue          in litigation which achieve[s] some of the benefit [it] sought in          bringing  the suit.'"  McDonald, 884 F.2d at 1474 (quoting Nadeau                                 ________                            ______          v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)).  The district             ________          court determined that plaintiffs had achieved their ultimate goal          of  a just  reapportionment,  based  on  the most  recent  census          figures.  It further determined that the requested attorney's and          expert fees  were reasonable.   The court therefore  awarded fees          for work  expended on both the  1980 and 1990 census  claims.  We          affirm.               Defendant's  technical focus  on  the 1980  census claim  is          misguided.    Plaintiffs  sued   the  town  to  achieve   a  fair          apportionment  of the town's voting districts, and, at every step          of  this   proceeding,  they  succeeded.     At  the  preliminary          injunction hearing, they proved  that the town's voting districts          were malapportioned under the 1980  census, and the court forbade          use  of these  districts in  the 1990  elections.  Once  the 1990          census data became available,  plaintiffs amended their complaint          and  eventually effected  redistricting based  on these  figures.          The district  court therefore  did not  abuse  its discretion  by          awarding  fees  for work  expended  on  plaintiffs' original  and          amended claims.                                         -5-               Alternatively,  the town  argues that  special circumstances          render  any award  unjust.   The town  explains that  its charter          requires  districts   based  on  the  number   of  electors,  not          residents.   Johnston Town Charter Sec. 2-6.  It therefore claims          that  it "did  not  create  and  is  powerless  to  prevent"  the          malapportionment.   Appellant's Brief at 18-19.  The town asserts          that  its blamelessness  is  a special  circumstance that  should          relieve  it of  the  burden of  bearing  plaintiffs' fees.    See                                                                        ___          Chastang v.  Flynn and Emrich Co., 541  F.2d 1040, 1045 (4th Cir.          ________     ____________________          1976) (citations omitted).               The town's argument lacks  merit.  We note that  the charter          itself  requires the town to  redistrict within one  year of each          census  and more often if necessary, yet  the town took no action          until  it  was  sued 27  years  after  the  districts first  were          established.2   The town clearly had the authority to reapportion          the councilmanic districts, for it drafted the redistricting plan          incorporated in the consent judgment.                 Finally, the  town contends that the  district court's award          of  fees  resulted from  a biased  perception  that the  town had          prolonged  the litigation  needlessly  and willfully.   The  town          argues that  newspaper articles critical  of its  conduct of  the          case  impermissibly influenced  the  district  court.   Defendant          appends copies  of these articles to its brief on appeal.  It did                                        ____________________          2  On appeal, the town urges that it made attempts to correct the          malapportionment before this lawsuit.   The record, however, does          not contain any competent evidence of these attempts.                                           -6-          not  present the issue  of bias or  the articles to  the district          court.                 We  decline to  consider the  question of  bias, for  it was          raised  for the  first  time on  appeal.   See  United  States v.                                                     ___  ______________          Yefsky, No. 90-1174, slip op. at 22 n.7 (1st Cir. May 3, 1993).            ______          We do  not intend, however,  for our refusal  to be  construed as          conferring  merit  on  defendant's  claim.    The  town  has  not          presented  a   plausible  challenge   to  the   district  court's          impartiality.               Affirmed.3               ________                                        ____________________          3  In its brief, the town included two pages entitled "Appellant,          Town  of Johnston's,  Motion  for Rehearing,"  which purports  to          request reconsideration  of the  district court's award  of fees.          The town has  not filed a  motion requesting this relief,  and we          decline to  address  its self-styled  "motion."   The  issues  it          raises, however, are identical to those raised on appeal.                                         -7-
