783 F.2d 1104 (D.C. Cir. 1986), 85-5264, Grano v. Barry

Docket Nº:85-5264.
Citation:783 F.2d 1104
Party Name:Joseph N. GRANO, Jr., et al. v. Marion S. BARRY, Mayor, District of Columbia, et al., Appellants Oliver T. Carr, Jr., et al.
Case Date:February 21, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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783 F.2d 1104 (D.C. Cir. 1986)

Joseph N. GRANO, Jr., et al.


Marion S. BARRY, Mayor, District of Columbia, et al., Appellants

Oliver T. Carr, Jr., et al.

No. 85-5264.

United States Court of Appeals, District of Columbia Circuit

February 21, 1986

Argued Jan. 3, 1986.

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[Copyrighted Material Omitted]

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Richard A. Green, with whom William Joseph H. Smith and William J. Utermohlen were on brief for intervenor-appellees.

William A. Dobrovir, with whom David L. Sobel was on brief for appellees.

Before WALD, MIKVA and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

The District of Columbia ("District") appeals from the District Court's award of attorneys' fees under 42 U.S.C. Sec. 1988 to plaintiffs who successfully sought an injunction prohibiting the demolition of the Rhodes Tavern prior to a scheduled referendum dealing with the future of the tavern. The District urges several grounds for reversal: (a) because the referendum was eventually held unconstitutional by the Superior Court of the District of Columbia, and because the tavern was eventually razed, the plaintiffs were not "prevailing parties" under the statute; (b) since the constitutional claim on which the plaintiffs won the injunction was itself frivolous, no award of fees was justified; (c) even if the claim on which the plaintiffs prevailed was colorable, the District Court should have found that exceptional circumstances in this case precluded an award of fees; (d) the District Court erred in not requiring the intervenors in the suit to share in the payment of fees; and (e) the District Court erred in calculating the fees at $53,579.47. We address each of these claims individually, and in so doing affirm much of the District Court's rationale. We do, however, ultimately remand for consideration of the "special circumstances" issue, and, if fees are awarded, reconsideration of some items involved in their calculation.


  1. Preliminary Rounds

    After holding public hearings on the issue, the District, on February 11, 1980, ordered the issuance of demolition permits allowing the Oliver T. Carr Company to raze the Rhodes Tavern in order to construct a large office and retail store complex. Plaintiffs, a group of citizens interested in preserving the historic Rhodes Tavern, failed in their local court challenge to the issuance of the permits. Citizens Committee to Save Historic Rhodes Tavern v. District of Columbia Department of Housing and Community Development, 432 A.2d 710 (D.C.), cert. denied, 454 U.S. 1054, 102 S.Ct. 599, 70 L.Ed.2d 590 (1981).

    Having lost their battle before the District of Columbia courts, the plaintiffs decided to take their issue to the people. In August, 1982, the District of Columbia Board of Elections and Ethics approved the subject matter of an initiative dealing with the preservation of Rhodes Tavern, 1 and in February, 1983, plaintiffs submitted the requisite number of signatures to allow the initiative to appear on the ballot in the November 8, 1983, general election.

    Although the District of Columbia Court of Appeals had affirmed the issuance of the demolition permit in May, 1981, Carr could not actually obtain the permit until it met a number of conditions precedent.

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    These included obtaining an exception from the District of Columbia Board of Zoning Adjustment ("BZA"). In May, 1983, the BZA voted to grant Carr's exception, effective as of August 12, 1983.

  2. Litigation on the Merits

    1. Federal Courts

    Realizing that Carr's fulfillment of the conditions precedent to a demolition permit threatened to transform the Rhodes Tavern initiative into a post-demolition eulogy, plaintiffs brought a class action suit in the United States District Court for the District of Columbia on behalf of all registered voters who had signed the petition to have the initiative on the ballot. Plaintiffs sought a temporary restraining order, and a two-stage injunction against the District's issuance of the permit. First, they sought injunctive relief pending the election, arguing that if the demolition were to occur sooner, the citizenry would be deprived of its right to an effective vote on a matter that had already been deemed a proper subject of an initiative. Second, they asked the court to extend the injunction, so that if the initiative passed the District would be prohibited from issuing the permit until the procedures contemplated by the initiative were satisfied.

    The District Court allowed Oliver T. Carr, Jr. and George H. Beuchert, Jr., trustees of the property in question, to intervene in the suit, and after full briefing and oral argument by all parties, granted summary judgment for the plaintiffs. The court enjoined the District

    from issuing a demolition permit ... (1) until after the November 8, 1983 elections ... and the certification of the result of the vote on Initiative No. 11; and if the majority of the voters vote YES on Initiative No. 11 and it is enacted as the law of the District of Columbia, then (2) until the procedures contemplated in Initiative No. 11 for the preservation of the Rhodes Tavern are concluded.

    Grano v. Barry, Civ. Action No. 83-2225 (D.D.C. Sept. 1, 1983). In its Memorandum Opinion, the District Court explained its decision as based on the District's citizens' "right to vote effectively," mem. op. at 7, and the "unquestioned right to petition their government to redress what they believe are grievances," id. at 8 (citations omitted). Although the District and intervenors had argued that the initiative was invalid under local law and unconstitutional as a taking of Carr's property, the District Court accepted the plaintiffs' argument that "[n]either the validity nor the constitutionality of the initiative ... may properly be resolved by this court. Those issues will be ripe for adjudication only if the initiative in fact passes and becomes law." Id. at 10.

    The District and Carr immediately appealed to this court and twice asked for expedited consideration and summary reversal. The plaintiffs objected, and a motions panel of this court denied the two sets of motions for summary reversal and expedition on October 21, 1983, and on October 28, 1983, respectively.

    On November 8, 1983, the voters of the District of Columbia passed Initiative No. 11 by a vote of 22,997 for and 15,420 against. These results were certified and sent to Congress for its statutory review under D.C.Code Sec. 1-233(c)(1) (1981). Since Congress took no action, Initiative No. 11 became law on March 15, 1984. D.C. Law 5-69, codified as D.C.Code Secs. 5-1021-1023 (1985 cum.supp.).

    In its May 4, 1984, decision on the appeal, this court first held that the propriety of the District Court's pre-election injunction was now a moot issue since the election had already taken place. Grano v. Barry, 733 F.2d 164, 167-68 (D.C.Cir.1984). As for the post-election injunction, we reversed the District Court, finding that the post-election injunction had no basis in federal law. Any possible claims to support such an injunction under local law, we held, must be addressed to the District of Columbia--not the federal--courts. Id. at 168-69.

    2. The Local Courts

    With no injunction barring the demolition any longer, plaintiffs filed a new action in

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    the Superior Court of the District of Columbia. On August 20, 1984, that court granted the District's and intervenors' motions for summary judgment, and held that Initiative No. 11, on its face, constituted an unconstitutional taking. Citizens Committee to Save Historic Rhodes Tavern v. Barry, Civ. Action No. 6833-34 (D.C.Sup.Ct. Aug. 20, 1984). On August 30, the District of Columbia Court of Appeals stayed the Superior Court's order, conditioned upon plaintiffs' posting $100,000 bond by September 6, 1984. Plaintiffs were unable to raise that amount by that date, and the stay was therefore vacated. The court refused to reinstate the stay when, on September 10, plaintiffs proffered the bond, and on that same day the District issued Carr a demolition permit and the tavern was demolished. Grano's appeal of the Superior Court's order was subsequently dismissed as moot.

  3. The Attorneys' Fees...

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