                                                  Filed:   November 20, 2000

                     UNITED STATES COURT OF APPEALS

                         FOR THE FOURTH CIRCUIT


                              Nos. 99-1955(L)
                              (CA-98-43-2-BR)



William Bryant Perry, et al.,

                                                    Plaintiffs - Appellees,

           versus


Gary O. Bartlett, etc., et al.,

                                                   Defendants - Appellants.



                                   O R D E R



     The   court    amends   its   opinion     filed   October   3,   2000,   as

follows:

     On page 12, first paragraph, line 7 -- the reference to

Section 14A is corrected to read “Section 12A.”

                                               For the Court - By Direction



                                               /s/ Patricia S. Connor
                                                        Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM BRYANT PERRY; FARMERS
FOR FAIRNESS, INCORPORATED,
Plaintiffs-Appellees,

v.

GARY O. BARTLETT, in his official
capacity as Executive Director of the
State Board of Elections of the State
of North Carolina; LARRY LEAKE, in his
official capacity as Chairman of the
State Board of Elections; S. KATHERINE
BURNETTE, in her official capacity as a
Secretary of the State Board of
Elections; JUNE K. YOUNGBLOOD;
                                          No. 99-1955
DOROTHY PRESSER, in her official
capacity as a Member of the State
Board of Elections; FAIGER M.
BLACKWELL, in his official capacity as
a Member of the State Board of
Elections; MICHAEL F. EASLEY, in his
official capacity as Attorney General
for the State of North Carolina; COLON
WILLOUGHBY, in his official capacity as
District Attorney for the 10th Judicial
District; WILLIAM H. ANDREWS, in his
official capacity as District Attorney
for the 4th Judicial District;
C. BRANSON VICKORY, III, in his
official capacity as District Attorney
for the 8th Judicial District,
Defendants-Appellants,
and

DONALD M. JACOBS,
Defendant.

WILLIAM BRYANT PERRY; FARMERS
FOR FAIRNESS, INCORPORATED,
Plaintiffs-Appellees,

v.

GARY O. BARTLETT, in his official
capacity as Executive Director of the
State Board of Elections of the State
of North Carolina; LARRY LEAKE, in his
official capacity as Chairman of the
State Board of Elections; S. KATHERINE
BURNETTE, in her official capacity as a
Secretary of the State Board of
Elections; JUNE K. YOUNGBLOOD;
                                          No. 99-2127
DOROTHY PRESSER, in her official
capacity as a Member of the State
Board of Elections; FAIGER M.
BLACKWELL, in his official capacity as
a Member of the State Board of
Elections; MICHAEL F. EASLEY, in his
official capacity as Attorney General
for the State of North Carolina; COLON
WILLOUGHBY, in his official capacity as
District Attorney for the 10th Judicial
District; WILLIAM H. ANDREWS, in his
official capacity as District Attorney
for the 4th Judicial District;

                  2
C. BRANSON VICKORY, III, in his
official capacity as District Attorney
for the 8th Judicial District,
Defendants-Appellants,
and

DONALD M. JACOBS,
Defendant.

WILLIAM BRYANT PERRY; FARMERS
FOR FAIRNESS, INCORPORATED,
Plaintiffs-Appellants,

v.

GARY O. BARTLETT, in his official
capacity as Executive Director of the
State Board of Elections of the State
of North Carolina; LARRY LEAKE, in his
official capacity as Chairman of the
State Board of Elections; S. KATHERINE
BURNETTE, in her official capacity as a
Secretary of the State Board of
Elections; JUNE K. YOUNGBLOOD;
                                          No. 99-2148
DOROTHY PRESSER, in her official
capacity as a Member of the State
Board of Elections; FAIGER M.
BLACKWELL, in his official capacity as
a Member of the State Board of
Elections; MICHAEL F. EASLEY, in his
official capacity as Attorney General
for the State of North Carolina; COLON
WILLOUGHBY, in his official capacity as
District Attorney for the 10th Judicial
District; WILLIAM H. ANDREWS, in his
official capacity as District Attorney
for the 4th Judicial District;

                  3
C. BRANSON VICKORY, III, in his
official capacity as District Attorney
for the 8th Judicial District,
Defendants-Appellees,
and

DONALD M. JACOBS,
Defendant.

Appeals from the United States District Court
for the Eastern District of North Carolina, at Elizabeth City.
W. Earl Britt, Senior District Judge.
(CA-98-43-2-BR)

Argued: April 4, 2000

Decided: October 3, 2000

Before HAMILTON, Senior Circuit Judge, John C. GODBOLD,
Senior Circuit Judge of the United States Court of Appeals
for the Eleventh Circuit, sitting by designation, and
David A. FABER, United States District Judge for the
Southern District of West Virginia, sitting by designation.

_________________________________________________________________

Affirmed by published per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Susan Kelly Nichols, Special Deputy Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellants. Heidi Karin Meyer, BOPP, COLESON &
BOSTROM, Terre Haute, Indiana, for Appellees. ON BRIEF:
Michael F. Easley, North Carolina Attorney General, Alexander McC.
Peters, Special Deputy Attorney General, James Peeler Smith, Special

                  4
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellants. James Bopp, Jr.,
James R. Mason, III, BOPP, COLESON & BOSTROM, Terre Haute,
Indiana, for Appellees.

_________________________________________________________________

OPINION

PER CURIAM:

Appellees Farmers for Fairness, Inc. and William Bryant Perry
(collectively "Farmers"), filed suit in federal court challenging certain
provisions of the North Carolina election and campaign finance law
and seeking declaratory and injunctive relief. Although determining
that the question of the constitutionality of N.C. Gen. Stat. § 163-
278.12A was moot following this court's decision in North Carolina
Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999), the district
court nevertheless enjoined the State of North Carolina from enforc-
ing the statute against plaintiffs. North Carolina appeals from the
judgment of the district court, as well as certain portions of the attor-
neys' fee awarded to plaintiffs. Farmers cross-appeals the denial of
certain attorneys' fees and expenses. For reasons expressed more fully
below, we affirm.

I.

Farmers is a nonprofit organization, incorporated and doing busi-
ness in the State of North Carolina. Its purpose is to educate the pub-
lic, officeholders, and candidates on issues relating to the agricultural
and farming industries.11 In furtherance of effectuating this purpose,
Farmers provides the public with candidates' and/or officeholders'
positions on issues affecting agriculture and farming. Farmers does
not purport to nominate, elect, or defeat candidates. While Farmers
does make expenditures that may incidentally influence the results of
an election, it does not in explicit words or by express terms advocate
_________________________________________________________________

1 According to the allegations in the complaint, Perry is a person who
has benefitted from, and would like to continue to benefit from, commu-
nications from Farmers. (J.A. 32, ¶ 32).

                   5
the election or defeat of a candidate. "In other words, [Farmers] does
not engage in `express advocacy'--advocacy`that in express terms
[calls for] the election or defeat of a clearly identified candidate for
office.'" North Carolina Right to Life, 168 F.3d at 708 (quoting Buck-
ley v. Valeo, 424 U.S. 1, 44 (1976) (per curiam)). Farmers does, how-
ever, engage in issue advocacy, in the form of dissemination to the
public of information regarding the positions of candidates and/or
officeholders. Farmers acknowledges that the issue advocacy in
which it engages can and does influence the outcome of elections.

In particular, Farmers purchased advertising that was critical of
certain members of the North Carolina House of Representatives, in
particular, Rep. Cynthia Watson and Rep. Steven Rader. The adver-
tisements named particular officials who were candidates for election,
but did not expressly exhort voters to take a particular electoral
action. Along with the advertisements, Farmers commissioned polling
that included "push" questions (questions designed to convey a nega-
tive impression of the candidate).

After receiving complaints from Watson and Rader, the State
Board of Elections conducted a hearing in April of 1998. The Board
found that Farmers had acted with the intent to oppose the re-election
of certain Republican candidates, and was therefore in violation of the
reporting requirements contained in N.C. Gen. Stat. § 163-278.12A
("Section 12A").2
                2 The Board entered an order on June 23, 1998,
_________________________________________________________________

2 The statute provides, in pertinent part:

        Any individual, person, political committee, or other entity that
        makes an expenditure for printed material or advertisements
        broadcast or distributed to anyone other than members of the
        entity shall report those expenditures in accordance with subsec-
        tion (b) of this section if the printed material or advertisement
        names a candidate or names an individual whose prospective or
        potential candidacy is the principal purpose of a political com-
        mittee. The disclosure requirements of this section do not apply
        to the following:

        (1) Material that is solely informational and is not intended
        to advocate the election or defeat of a candidate or pro-
        spective candidate; or . . . .

N.C. Gen. Stat. § 163-278.12A.

                   6
requiring Farmers to register as a political committee and to make the
filings required under Chapter 163 of the North Carolina General
Statutes.

Farmers filed an action in federal court challenging as facially
unconstitutional Section 12A and § 163-278.6(14) ("Section 14")3
                                                               3 of
the state election statute. Section 12A requires disclosure when an
advertisement names a candidate, but does not apply if the material
is solely informational and is not intended to advocate the election or
defeat of a candidate. Section 14 defines a "political committee,"
which in turn triggers a series of potential penalties. Farmers claims
that both sections of the statute are overbroad and therefore unconsti-
tutional. Farmers sought both a temporary restraining order ("TRO")
and a preliminary injunction against enforcement of the laws, and
both were denied by the district court. Farmers filed an interlocutory
appeal of the denial of the preliminary injunction.

Both parties filed motions for summary judgment in December of
1998. Shortly thereafter, this court issued its opinion in North Caro-
lina Right to Life, Inc. v. Bartlett, 168 F.3d 705 (4th Cir. 1999). In
that opinion, this court struck down Section 14 of the state election
law, finding that the definition of political committee was unconstitu-
tionally vague and overbroad.

Based on the NCRL decision, the district court found that the ques-
tion of the constitutionality of Section 12A was moot. Notwithstand-
ing the mootness determination, the court permanently enjoined the
State from enforcing Section 12A against Farmers. The district court
denied the State's motion to reconsider the question of mootness, and
went on to award attorneys' fees and expenses to Farmers in July of
1999.

The State appeals the finding that the constitutionality of Section
12A is moot, and it also appeals that portion of the attorneys' fee
_________________________________________________________________

3 Section 14 defines political committee as "a combination of two or
more individuals, or any person, committee, association, or organization,
the primary or incidental purpose of which is to support or oppose any
candidate or political party or to influence or attempt to influence the
result of an election . . . ." N.C. Gen. Stat. § 163-278.6(14).

                  7
award attributable to work done on the unsuccessful interlocutory
appeal. Farmers cross-appeals the denial of certain fees and expenses
that they requested.

II.

The district court erred in ruling that the constitutionality of Sec-
tion 12A was mooted by the NCRL decision. As both the State and
Farmers pointed out, Section 12A could still be applied to Farmers
notwithstanding this court's decision enjoining the State Board from
applying Section 14. By its own terms, Section 12A applies to "[a]ny
individual, person, political committee, or other entity . . . ." Farmers
meets the requirements for inclusion not only as an"entity," but also
as a "person." Therefore, the district court's failure to reach the ques-
tion of the constitutionality of Section 12A on mootness grounds was
erroneous. However, because the question is purely a legal one, a
remand is unnecessary and this court will reach the constitutional
question.

III.

"Discussion of public issues and debate on the qualifications of
candidates are integral to the operation of the system of government
established by our Constitution. The First Amendment affords the
broadest protection to such political expression in order `to assure
(the) unfettered interchange of ideas for the bringing about of political
and social changes desired by the people.'" Buckley v. Valeo, 424
U.S. 1, 14 (1976) (quoting Roth v. United States , 354 U.S. 476, 484
(1957)). In an effort to alleviate uncertainty, the Supreme Court
adopted a bright-line rule to determine when political expression may
be regulated. This bright-line rule requires the use of express or
explicit words of advocacy of the election or defeat of a candidate
before the communication may be regulated. See Buckley at 42.

The Buckley Court noted that "the distinction between discussion
of issues and candidates and advocacy of issues and candidates may
often dissolve in practical application." Id. at 42. The Court therefore
refused to adopt a standard allowing regulation of any advertisement
that mentions a candidate's stand on an issue. See id. at 42-43. In a
footnote, the Court provided an illustrative list of the terms that qual-

                  8
ify as "express words of advocacy": "`vote for,' `elect,' `support,'
`cast you ballot for,' `Smith for Congress,'`vote against,' `defeat,'
`reject,'" Id. at 44.

The Fourth Circuit has steadfastly adhered to the bright-line "ex-
press advocacy" test from Buckley. In Federal Election Comm'n v.
Christian Action Network, Inc., 110 F.3d 1049 (4th Cir. 1997), the
court upheld an award of attorneys' fees to the Christian Action Net-
work ("CAN") in a case where the FEC challenged a CAN ad identi-
fying then-Governor Clinton's position on gay rights in a negative
fashion, but did not use words of "express advocacy." The court,
interpreting Buckley, stated that "[t]he Court opted for the clear, cate-
gorical limitation, that only expenditures for communications using
explicit words of candidate advocacy are prohibited . . . ." Id. at 1051.
The court therefore rejected the FEC's position that "express advo-
cacy" could be established by looking at a group's use of imagery,
rhetoric, and symbols in criticizing a candidate's position. See id. at
1064.

Other courts applying Buckley have also required express words of
advocacy before allowing government regulation of campaign speech.
See, e.g., Iowa Right to Life Committee, Inc. v. Williams, 187 F.3d
963, 969 (8th Cir. 1999) ("Questions of intent and effect, however,
are to be excluded from the [express advocacy] analysis, since a
speaker, in such circumstances, could not safely assume how anything
he might say would be understood by others."); Faucher v. Federal
Election Comm'n, 928 F.2d 468, 472 (1st Cir. 1991) ("In our view,
trying to discern when issue advocacy in a voter guide crosses the
threshold and becomes express advocacy invites just the sort of con-
stitutional questions the Court sought to avoid in adopting the bright-
line express advocacy test in Buckley."); Federal Election Comm'n v.
Christian Coalition, 52 F. Supp. 2d 45, 61 (D.D.C. 1999) (holding
that under the "express advocacy" test, the communication "must in
effect contain an explicit directive," whose effect "is determined first
and foremost by the words used"). It is therefore clear that courts have
only allowed regulation of campaign speech when there are words of
express advocacy in the communication itself.

On its face, Section 12A does not allow regulation of issue advo-
cacy so long as it "is not intended to advocate the election or defeat

                   9
of a candidate or prospective candidate." However, if the intention of
the communication is the election or defeat of a candidate, the statute
would require financial disclosure. The State readily admits that
Farmers' communications in and of themselves are not"express advo-
cacy" of the kind described in Buckley. The State, however, argues
that if an entity admits that the purpose of the advertisement is to
defeat a particular candidate, regulation of that entity is constitutional
under Buckley even if the advertisement itself does not contain words
of express advocacy. The State does not cite any authority in support
of its theory. In essence, the State is asking this court to recognize an
exception to the "express advocacy" test when the entity admits, out-
side of the advertisement, that it is trying to defeat a particular candi-
date.

The State's position is undermined by Buckley and its progeny. The
Supreme Court developed the express advocacy test to focus a court's
inquiry on the language used in the communications; any other test
would leave the speaker "wholly at the mercy of the varied under-
standing of his hearers and consequently of whatever inference may
be drawn as to his intent and meaning." Buckley, 424 U.S. at 43. In
addition, circuit decisions applying Buckley have categorically
rejected any attempt to dilute the bright-line express advocacy stan-
dard.

Furthermore, under the State's proposed test, it is unclear which
statements of intent made outside the context of an advertisement
would leave the entity subject to regulation under North Carolina law.
For example, a court would have to decide whether a statement made
by the head of an organization that its ad "was intended to defeat can-
didate X" was enough to impute intent to the organization; in addi-
tion, some members of an organization may admit that an ad "was
intended to defeat candidate X" while others in the organization may
claim that the intent of the ad was to focus on a particular issue.

Discerning the "intent" of an organization thus can be problematic,
even if some in the organization "admit" their intent in running the
ad. Certain groups might be disinclined to engage in political speech,
fearful that someone in the group would make a public statement of
the group's intent in a particular ad, thus subjecting the group to regu-
lation. We therefore would create a legal standard that would be the

                  10
antithesis of the bright-line express advocacy test developed in Buck-
ley. Consequently, we decline the State's offer to abandon the rule of
Buckley and to allow the State of North Carolina to regulate political
expression, which on its face is issue advocacy, when the speaker
acknowledges an intent to influence the outcome of an election.
Because Section 12A would allow the regulation of issue advocacy
wherein the speaker has manifested an intent to advocate the election
or defeat of a candidate, it is unconstitutionally overbroad and the
State is permanently enjoined from enforcing it.

IV.

The State next argues that the district court abused its discretion in
awarding attorneys' fees of $24,418.07 to Farmers for time spent on
its interlocutory appeal of the denial of a motion for a preliminary
injunction and its attempt to obtain an injunction at the appellate
level. The State submits that Farmers' efforts at obtaining interlocu-
tory relief did not in any manner advance the course of the litigation
or contribute to the relief obtained by the final judgment.

Farmers filed the instant lawsuit challenging the constitutionality of
both Sections 12A and 14, and seeking injunctive relief to prohibit
their enforcement. The district court denied the motion for a prelimi-
nary injunction on the grounds that the harms were nearly equal and
that Farmers had not demonstrated a likelihood of success on the mer-
its.

Farmers appealed from the denial of its motion for a preliminary
injunction and asked this court for an injunction pending appeal. This
court denied the motion for an injunction pending appeal. Farmers
then asked the district court to stay proceedings in that court pending
the outcome of the interlocutory appeal. Farmers asked for the stay
because some of the legal issues on appeal from the denial of the pre-
liminary injunction were also present in NCRL, which was pending
in the Fourth Circuit, and that the interests of judicial economy would
be served by awaiting this court's decision rather than going back to
the district court.

The State argues that the district court should not have awarded
attorneys' fees to Farmers for work done pursuing its interlocutory

                  11
appeal because the appeal was fruitless. Specifically, the State notes
that, in NCRL, the Fourth Circuit stayed, pending appeal, the district
court's order finding Section 14 unconstitutional. The State argues
that, given this ruling by the Fourth Circuit, Farmers' attempt to
appeal the denial of a preliminary injunction in this case was doomed
to fail. According to the State, the Fourth Circuit was not about to
allow continued enforcement of Section 12A pending appeal in NCRL
yet enjoin the enforcement of the same statute in this case.

In response, Farmers notes a number of reasons why it was reason-
able to pursue its appeal of the denial of the preliminary injunction
despite this court's ruling in NCRL. First, Farmers notes that a deter-
mination to stay a judgment pending appeal in one case depends on
the unique circumstances in that case and has no bearing on other
cases in which the parties and circumstances are different. A stay
pending appeal thus "contemplate[s] individualized judgments in each
case, the formula cannot be reduced to a set of rigid rules." Hilton v.
Braunskill, 481 U.S. 770, 777 (1987). The stay in NCRL therefore did
not mean that this court would not overturn the denial of the prelimi-
nary injunction in this case.

Second, Farmers notes that in NCRL, the State's lead argument for
a stay pending appeal was that the plaintiffs in that case lacked Article
III standing. In the instant case, standing has never been a serious
issue. Farmers thus could have reasonably believed that the court was
considering the merits of a stay of the statute for the first time when
Farmers pursued its appeal of the denial of the preliminary injunction.

Finally, Farmers argues that its appeal was reasonable because this
case involves different statutes than those involved in NCRL. Both
cases involved a challenge to Section 14; however, NCRL also
involved a challenge to § 163-278.13B, a regulation on lobbyist con-
tributions, which was not at issue in this case. Further, Farmers chal-
lenged Section 12A, the statute at issue in this appeal, while that
statute was not challenged in NCRL. Because the statutes involved in
the cases were not identical, Farmers argues it had a reasonable basis
for pursuing its appeal of the denial of the preliminary injunction.

The district court did not abuse its discretion in awarding Farmers
attorneys' fees for its work on the interlocutory appeal. As the State

                  12
concedes, Farmers was a prevailing party in this litigation. Although
it did not prevail on its interlocutory appeal, it was ultimately success-
ful in having the State enjoined from applying both Section 12A and
Section 14. The State's efforts to characterize Farmers' efforts as
"wholly futile" based upon the stay entered in NCRL is unavailing.
The State seems to suggest that this court's stay Order in NCRL
essentially made it impossible for Farmers to prevail on its interlocu-
tory appeal. The court agrees with Farmers' assessment of the defi-
ciencies of the State's argument to this effect and agrees that pursuit
of the interlocutory appeal was not a futile endeavor.

Furthermore, the court finds unconvincing the State's argument
that because Farmers did not prevail in its interlocutory appeal, it was
not entitled to its fees for pursuing it. As the Fourth Circuit has noted,
"entitlement to fees for one aspect of a protracted litigation does not
turn narrowly on whether the party prevailed on that particular matter,
but whether a separate claim or, as here, a separate proceeding is so
unrelated as to justify treating it as a `separate lawsuit[ ].'" Plyler v.
Evatt, 902 F.2d 273, 280 (4th Cir. 1990) (" Plyler II"). The district
court found that Farmers' pursuit of interlocutory relief was related
to the case in chief, and that, therefore, Farmers was entitled to its
attorneys' fees for this work. Its decision in this regard was not an
abuse of discretion.

V.

Finally, Farmers argues that the district court erred in denying cer-
tain attorneys' fees requested in responding to the State's motion for
reconsideration on the question of mootness. Defendants argue that
the district court's denial of the fees was proper. The parties disagree
as to the standard of review applicable to this challenge.

"If the district court denies a prevailing party's motion for attor-
neys' fees, we review such denial for abuse of discretion. However,
if the district court determines, as a matter of law, that a party is not
a prevailing party, we review the district court's determination de
novo." Reinbold v. Evers, 187 F.3d 348, 362 (4th Cir. 1999) (citations
omitted); see also Shaw v. Hunt, 154 F.3d 161, 164 (4th Cir. 1998);
McDonnell v. Miller Oil Co., 134 F.3d 638, 640 (4th Cir. 1998).

                   13
In arguing that the district court ruled as a matter of law that they
were not entitled to prevailing party status, plaintiffs apparently hang
their hat on certain language found in the district court's order of July
27, 1999, which reads:

        Plaintiffs have submitted a request for fees and expenses for
        40.75 hours of work done in relation to a motion to recon-
        sider and in response to defendants [sic] objections to their
        original fee declaration. Defendants object to an award of
        fees and expenses for this time on the ground that the
        motion to reconsider to which plaintiffs responded was not
        addressed to the issue on which they prevailed. Specifically,
        defendants moved this court to reconsider its Order of 8
        March 1999 only as to its decision that the unconstitutional-
        ity of N.C. Gen. Stat. § 163-278.12 was moot. Defendants
        did not move for reconsideration on the merits of the initial
        ruling. Plaintiffs agreed with defendants that the issue was
        not moot. However, they did not limit their response to the
        parameters of the motion, instead taking the opportunity to
        rebrief the merits as to that statute. The court denied the
        motion to reconsider by Order filed 9 June 1999 and did not
        reach the merits as both sides requested. Thus, neither side
        prevailed and each should bear its own costs.

J.A. 313 (emphasis added). Plaintiffs' reliance on this language to
support their position that the district court had found that it was not
a prevailing party, and thus, requiring de novo review on appeal,
ignores the indisputable finding of the court that plaintiffs were in fact
prevailing parties. See, e.g., J.A. 307 ("[T]he plaintiffs, as the prevail-
ing party, are entitled to `a reasonable attorney's fee as part of costs'
at the discretion of the court."). It is obvious that the district court did
not, as a matter of law, determine that plaintiffs were not a prevailing
party. Therefore, we will review the district court's decision for an
abuse of discretion.

As the parties are aware, a prevailing party is not necessarily enti-
tled to all attorneys' fees requested, but rather, only those which the
district court finds to be "reasonable." See 42 U.S.C. § 1988; Hensley
v. Eckerhart, 461 U.S. 424, 429 (1983). "Counsel for the prevailing
party should make a good faith effort to exclude from a fee request

                   14
hours that are excessive, redundant, or otherwise unnecessary. . . ."
Id. at 434. A district court has discretion in determining the amount
of a fee award. See id. at 437.

The district court did not abuse its discretion in determining that
Farmers was not entitled to attorneys' fees for their response to the
motion to reconsider. The State limited the scope of its motion to
reconsider to the issue of the district court's determination that the
constitutionality of Section 12A was moot.4  4 There is no dispute that
plaintiffs agreed with defendants on this point. However, in respond-
ing to the motion, plaintiffs spent little time in arguing on the question
of mootness, but rather seized the opportunity to reargue the merits
of the constitutionality of Section 12A, an issue that had already been
extensively briefed for the court. When the district court denied the
motion for reconsideration, it pointed out that the parties were in
agreement on the issue of mootness. Therefore, because the motion
was denied, the court determined that neither side had prevailed on
this issue. It is obvious that the district court considered the hours
expended on the response to the motion for reconsideration to be
unnecessary. The district court noted that Farmers spent little, if any,
time briefing the issue of mootness, which was the subject of the
motion for reconsideration. The district court, in its discretion,
decided that the state should not bear the expenses associated with
plaintiffs' opportunistic briefing of issues not addressed by the motion
to reconsider. Farmers argues that this court's holdings in Plyler II
and Arvinger v. Mayor & City Council of Baltimore, 31 F.3d 196 (4th
Cir. 1994), illustrate the error of the district court's holding. However,
Plyler II and Arvinger are inapposite. Plyler II and Arvinger were
concerned with whether a litigant's status as a prevailing party carries
over to subsequent litigation efforts. As discussed above, there is no
question that Farmers' status as the prevailing party carried over to
the motion for reconsideration. The issue in the instant case is not
whether Farmers was entitled to prevailing party status, but rather, as
_________________________________________________________________

4 Although Farmers argues that the State reargued the constitutionality
of Section 12A in its motion to reconsider, the State simply referred the
court to its earlier briefs on this issue. Farmers contends that this action
required a response on the issue of the constitutionality of the statute.
However, Farmers could simply have followed the state's lead and
referred the district court to its earlier briefing on the subject.

                  15
the prevailing party whether it was entitled to its fees in pursuing the
motion to reconsider. The district court, in its discretion, found that
they were not and this court finds no error in its ruling.

VI.

In conclusion, we hold that the constitutionality of Section 12A
was not mooted by our holding in NCRL and the district court erred
in so finding. We find the statute to be unconstitutionally overbroad
and the state is enjoined from its enforcement. We affirm the district
court's rulings on the attorneys' fees issues that are the subject of the
appeal and the cross-appeal.

AFFIRMED

                  16
