Appeal from an order of the United States District Court for the Southern District of New York (Duffy, J.) denying plaintiff's motion for attorney's fees under the Voting Rights Act, 42 U.S.C. § 1973 1(e) and awarding attorney's fees to defendants Friedman and Schlein under the Attorney's Fees Awards Act, 42 U.S.C. § 1988.
Kaufman, Oakes, and Winter, Circuit Judges.
Gilberto Gerena-Valentin appeals from Judge Duffy's order denying his motion for attorney's fees under the Voting Rights Act, 42 U.S.C. § 1973 l(e) and awarding attorney's fees to defendants Friedman and Schlein under the Attorney's Fees Awards Act, 42 U.S.C. § 1988. We affirm.
This appeal arises out of a challenge under the Voting Rights Act, 42 U.S.C. § 1971 et seq., to New York City's 1981 redistricting plan. The plan, based on the 1980 census, redrew council district lines, thereby changing 300 of the City's 3000 election districts. The plan increased the number of council seats from 33 to 35 while retaining two at-large council seats for each of the City's five boroughs. However, the City failed to preclear the plan with the Justice Department even though preclearance was required under the Voting Rights Act. 42 U.S.C. § 1973c.
On June 12, 1981, the City submitted its plan to the Justice Department and asked for an expedited review. On June 16, one Melville Herron commenced an action in the Eastern District of New York challenging the redistricting plan under the Voting Rights Act. He sought to enjoin elections under the plan on the ground that the City had not received preclearance of the proposed changes. Injunctive relief was denied at that time as premature since the City still had ample opportunity to obtain preclearance from the Justice Department prior to the September 10, 1981 primary election. Candidates for the new council seats were allowed to petition for a place on the ballot as of June 16.
On August 4, 1981, the Justice Department informed the City that it would need additional information before it could determine whether or not the redistricting plan constituted a violation of Section 5 of the Voting Rights Act. On August 5, 1981, a second suit, Andrews v. Koch, was commenced in the Eastern District of New York by three Brooklyn voters, at least one of whom was Hispanic. The plaintiffs in Andrews alleged that the City's redistricting plan discriminated against minority voters and that the allotment of two at-large council seats for each of the five boroughs violated the constitutional right of voters in the larger boroughs. The Andrews plaintiffs sought a declaratory judgment and permanent injunctive relief. On September 1, 1981, an amended complaint was filed in Herron v. Koch, which again sought to enjoin the primary and general election until preclearance was obtained from the Justice Department.
On September 2, 1981, Gerena-Valentin, an incumbent Councilman from the Bronx, commenced the instant action in the Southern District of New York. Gerena-Valentin brought his suit as a class action on behalf of New York City's Puerto Rican and other Hispanic voters and alleged that the City had violated sections 5 and 4(e) of the Voting Rights Act, 42 U.S. C. §§ 1973c and b(e), by failing to preclear the redistricting plan and to provide adequate bilingual assistance to Hispanic voters. Gerena-Valentin's Section 5 claims were virtually identical to the claims asserted in Herron's amended complaint. By the time Gerena-Valentin filed his complaint, the City had conceded in Andrews v. Koch that the plan was subject to Section 5 of the Voting Rights Act and that preclearance could not be obtained before the primary election.Gerena-Valentin nevertheless sought to enjoin the primary election and general election pending preclearance.
In separate counts, Gerena-Valentin's complaint also alleged that Stanley Friedman, Chairman of the Bronx Democratic County Executive Committee, and Stanley Schlein, an attorney for the majority leader of the New York City Council, had conspired with the municipal defendants to cause Gerena-Valentin's name to be kept off the ballot in retaliation for his advocacy of his constituents' voting rights. These allegations arose out of state court litigation to which neither Friedman nor Schlein were parties but which resulted in the exclusion of Gerena-Valentin's name from the ballot on grounds suggestive of fraud in submitting petitions of registered voters. As relief, he sought an injunction requiring that his name be placed on the ballot. Gerena-Valentin was represented throughout by the Puerto Rican Legal Defense and Education Fund ("PRLDEF").
On the day Gerena-Valentin filed his complaint, Herron succeeded in persuading Judge Neaher to grant his motion to convene a three-judge district court under the Voting Rights Act. Gerena-Valentin's counsel assisted Herron's counsel in securing the order to convene a three-judge court. On the same day, Judge Duffy separately requested a three-judge court in response to Gerena-Valentin's complaint.Andrews' counsel had not yet sought a three-judge panel. On September 3, Chief Judge Feinberg of the Court of Appeals designated a three-judge panel consisting of Judges Kearse, Neaher and Duffy to decide those aspects of Herron, Andrews and Gerena- Gerena-Valentin arising under Section 5 of the Voting Rights Act. Gerena-Valentin's claim against Friedman and Schlein and his claims under Section 4(e) relating to bilingual assistance were thus severed.
On September 8, the three-judge court heard argument on the motion for a preliminary injunction. Paul Wooten, Herron's counsel, argued first and developed the case for granting the preliminary injunction. Gabe Kaimowitz, a PRLDEF lawyer representing Gerena-Valentin, argued that the City had not notified Hispanic voters in Spanish as to their new polling stations or election districts and that this omission was part of a long history of failure by the City to provide adequate bilingual assistance to Hispanic voters. Kaimowitz's arguments thus largely supported Gerena-Valentin's claim under Section 4 (e) of the Voting Rights Act, which had already been severed. However, he did suggest that Hispanic voters might be irreparably injured if the primary election, then only two days away, were not enjoined. Kim Sperduto, Andrews' counsel, argued last and challenged the council elections and the failure to obtain preclearance.
The three-judge district court enjoined the September 10th primary. Herron v. Koch, 523 F. Supp. 167 (E.D.N.Y. & S.D.N.Y. Sept. 8, 1981) (per curiam). The court's opinion referred to and resolved Gerena-Valentin's Section 5 claim along with Herron's and Andrew's claims. The opinion neither discussed nor relied on any theories argued by Kaimowitz. On September 9th, Messrs. Wooten, Kaimowitz and Sperduto all opposed the City's motion for a stay of the injunction before Justice Marshall, who denied the stay.
On October 27, 1981, the Justice Department notified the City of its objections to the redistricting plan, and two days later, Gerena-Valentine's action relating to the redistricting was transferred to the suspense docket. Thereafter, PRLDEF continued to lobby the Justice Department and the City for changes in the redistricting plan. In June, 1982, a redistricting plan was finally precleared under which the at-large ...