297 F.3d 253 | 3rd Cir. | 2002
Before: BECKER, Chief Judge, ALITO and(cid:13) RENDELL, Circuit Judges.(cid:13) (Filed July 11, 2002)(cid:13) RICHARD F. COLLIER, JR.,(cid:13) ESQUIRE (ARGUED)(cid:13) DAVID J. TREIBMAN, ESQUIRE(cid:13) Collier, Jacob & Mills(cid:13) 580 Howard Avenue(cid:13) Corporate Park III(cid:13) Somerset, NJ 08873(cid:13) Counsel for Appellants(cid:13) LEON FRIEDMAN, ESQUIRE(cid:13) (ARGUED)(cid:13) 148 East 78th Street(cid:13) New York, NY 10021(cid:13) DARA KLASSEL, ESQUIRE(cid:13) Planned Parenthood Federation(cid:13) of America(cid:13) 810 Seventh Avenue(cid:13) New York, NY 10019(cid:13) TALCOTT CAMP, ESQUIRE(cid:13) LOUISE MELLING, ESQUIRE(cid:13) Reproductive Freedom Project(cid:13) American Civil Liberties(cid:13) Union Foundation(cid:13) 125 Broad Street, 18th Street(cid:13) New York, NY 10004-2400(cid:13) ED BAROCAS, ESQUIRE(cid:13) American Civil Liberties Union of(cid:13) New Jersey Foundation(cid:13) 35 Halsey Street, Suite 4B(cid:13) Newark, NJ 07102(cid:13) Counsel for Appellees(cid:13) 2(cid:13) OPINION OF THE COURT(cid:13) BECKER, Chief Judge:(cid:13) This action was instituted by Planned Parenthood of(cid:13) Central New Jersey, Herbert Holmes, M.D., David Wallace,(cid:13) M.D., and Gerson Weiss, M.D. (the "plaintiffs") against, inter(cid:13) alia, the New Jersey Legislature, challenging the(cid:13) constitutionality of and seeking a permanent injunction(cid:13) against the enforcement of the New Jersey Partial-Birth(cid:13) Abortion Ban Act of 1997 (the "Act"), ch. 262., 1997 N.J.(cid:13) Sess. Law Serv. 871-71 (West), codified at N.J. Stat. Ann.(cid:13) S 2A:65A-5 to 7. The plaintiffs prevailed, and the District(cid:13) Court awarded them $522,992.84 in attorneys’ fees(cid:13) pursuant to 42 U.S.C. S 1988. The Legislature appeals the(cid:13) fee award, raising objections as to the amount of the award(cid:13) and the procedures followed in making it. The appeal also(cid:13) presents two questions of first impression for us: (1)(cid:13) whether a local rule that extends the time for filing a fee(cid:13) application beyond that prescribed in Fed. R. Civ. P. 54(d)(cid:13) is valid as a standing order within a proviso of that rule;(cid:13) and (2) whether the New Jersey Legislature is immune from(cid:13) liability for attorneys’ fees, given that it was solely(cid:13) responsible for the defense of the legislation at issue.(cid:13) We answer the first question in the affirmative,(cid:13) concluding that District of New Jersey Local Rule 52(a) is(cid:13) an "order of the court" for purposes of an exception in Fed.(cid:13) R. Civ. P. 54(d), thereby extending the time to file a fee(cid:13) application. Since the plaintiffs filed their fee application(cid:13) within the time prescribed in the local rule, we affirm the(cid:13) District Court’s order granting the plaintiffs’ requested(cid:13) extension of the time to file their fee petition without motion(cid:13) or notice, as is allowed under Fed. R. Civ. P. 6(b)(1).(cid:13) We answer the second question in the negative. We(cid:13) conclude that, while legislatures enjoy immunity for(cid:13) promulgating statutes, it makes little sense to provide them(cid:13) with this immunity when they step out of that role, as the(cid:13) New Jersey Legislature did here when it intervened to(cid:13) defend the constitutionality of the Act. We therefore hold(cid:13) that when a legislature steps out of its role and intervenes(cid:13) 3(cid:13) to defend a piece of (its) legislation, which the executive(cid:13) branch is not willing to defend, it becomes the functional(cid:13) equivalent of a defendant in the case and may be liable for(cid:13) attorneys’ fees.(cid:13) With respect to the defendants’ other contentions, we(cid:13) affirm in part and vacate in part, remanding for(cid:13) development of the record and further factual findings,(cid:13) including the clarification of the District Court’s award of(cid:13) 25.5 hours of moot court time in preparation for oral(cid:13) argument, which does not seem justified by the present(cid:13) record. We reverse outright the District Court’s award of(cid:13) fees for "observing" this Court during oral argument,(cid:13) concluding that there can be no recovery of attorneys’ fees(cid:13) for such activity.(cid:13) I. Facts and Procedural History(cid:13) On December 15, 1997, the plaintiffs filed a complaint(cid:13) challenging the constitutionality of the Act under 42 U.S.C.(cid:13) SS 1983 and 1988, seeking declaratory and injunctive relief,(cid:13) and naming the Attorney General, in his official capacity,(cid:13) the New Jersey Board of Medical Examiners, and the(cid:13) Commissioner of the Department of Health and Senior(cid:13) Services as defendants. The Act had been passed by the(cid:13) Legislature in June 1997. After the then-Governor,(cid:13) Christine Todd Whitman, vetoed it on the ground that it(cid:13) was unconstitutional, the Legislature overrode the veto,(cid:13) giving the Act immediate effect. The named defendants(cid:13) declined to defend the Act, but put the plaintiffs"on notice(cid:13) that [the Act] is the law of the State of New Jersey. The(cid:13) Attorney General has not advised physicians . . . not to(cid:13) comply with this law." On December 16, 1997, one day(cid:13) after the complaint was filed, the Legislature alerted the(cid:13) District Court of its intention to intervene "to vigorously(cid:13) defend the constitutionality of the Act." The District Court(cid:13) issued a temporary restraining order enjoining enforcement(cid:13) of the Act, granted the Legislature’s formal motion to(cid:13) intervene, and, with the parties’ consent, extended the(cid:13) temporary restraining order until final resolution of the(cid:13) case.(cid:13) After a four-day trial, the District Court entered a final(cid:13) judgment in favor of the plaintiffs and, on December 8,(cid:13) 4(cid:13) 1998, permanently enjoined the defendants from enforcing(cid:13) any provision of the Act. On December 17, 1998, the(cid:13) Legislature announced its intent to appeal. On December(cid:13) 24, 1998, more than 14 days after the judgment, which is(cid:13) the time period prescribed for the filing of a fee petition(cid:13) under Fed. R. Civ. P. 54(d)(2)(B), the plaintiffs moved for an(cid:13) extension of time to file their fee application. Based on its(cid:13) own local rule, which provided a 30-day deadline with the(cid:13) possibility of an extension, the District Court entered an(cid:13) order extending the time to file for attorneys’ fees until 30(cid:13) days after the conclusion of all appeals in the case. On(cid:13) January 5, 1999, the Legislature moved to vacate the(cid:13) extension of time and to strike the plaintiffs’ fee application(cid:13) as untimely. The District Court denied this motion.(cid:13) This Court affirmed on the merits and entered its(cid:13) judgment on July 26, 2000. See Planned Parenthood v.(cid:13) Farmer, 220 F.3d 127 (3d Cir. 2000). On August 1, 2000,(cid:13) the plaintiffs asked the District Court to clarify its(cid:13) December 24, 1998 order, which allowed them to file their(cid:13) fee application within "thirty days after the latest of: (1) the(cid:13) expiration of Defendants-Intervenor Appellant’s time to file(cid:13) a petition for certiorari to the United States Supreme Court;(cid:13) (2) the denial of a petition for certiorari by the United States(cid:13) Supreme Court; or (3) the granting of a petition for(cid:13) certiorari and disposition of this case by the United States(cid:13) Supreme Court." By letter dated August 15, 2000, the(cid:13) District Court stated that the plaintiffs "have correctly(cid:13) understood the deadline."(cid:13) On November 21, 2000, the plaintiffs filed their fee(cid:13) application in the District Court. The Legislature filed(cid:13) opposition papers, arguing that it was immune from(cid:13) liability for fees and that the fee application was both(cid:13) untimely and excessive. The District Court heard oral(cid:13) argument, and rejected the Legislature’s arguments with(cid:13) respect to both immunity and untimeliness. The District(cid:13) Court found that the plaintiffs were prevailing parties under(cid:13) S 1983, filed an opinion and order rejecting the Legislature’s(cid:13) objections, and granted the plaintiffs the requested(cid:13) $522,992.84 in attorneys’ fees for the District Court trial,(cid:13) the appeal to this Court, and work performed on the fee(cid:13) application. The Legislature filed a timely Notice of Appeal,(cid:13) 5(cid:13) challenging the District Court’s order extending the time for(cid:13) the plaintiffs to file their fee application; its determination(cid:13) that the New Jersey Legislature was not immune for(cid:13) liability for fees and costs; and the award of fees. We have(cid:13) jurisdiction over the appeal pursuant to 28 U.S.C.S 1291.(cid:13) II. Timeliness of the Fee Applications(cid:13) The threshold issue, which is purely a question of law, is(cid:13) whether the plaintiffs’ initial request for an extension of(cid:13) time on their fee application was timely. A decision to grant(cid:13) an extension of time pursuant to Fed. R. Civ. P. 6(b) is(cid:13) reviewed for abuse of discretion. Dominic v. Hess Oil V.I.(cid:13) Corp., 841 F.2d 513, 516 (3d Cir. 1988). The legal(cid:13) interpretation of a procedural rule is reviewed de novo.(cid:13) Elcock v. Kmart Corp., 233 F.3d 734, 745 (3d Cir. 2000).(cid:13) Fed. R. Civ. P. 54(d), which governs the awarding of(cid:13) attorneys’ fees, states:(cid:13) Unless otherwise provided by statute or an order of the(cid:13) court, the motion must be filed and served no later than(cid:13) 14 days after entry of judgment; must specify the(cid:13) judgment and the statute, rule, or other grounds(cid:13) entitling the moving party to the award; and must state(cid:13) the amount or provide a fair estimate of the amount(cid:13) sought.(cid:13) (emphasis added). The plaintiffs filed their request for an(cid:13) extension of time on December 24, 1998, more than 14(cid:13) days after the judgment was entered on December 8, 1998.(cid:13) The District Court held that the motion was not time-(cid:13) barred, and granted the extension, relying on District of(cid:13) New Jersey Local Rule 54.2(a), which provides:(cid:13) In all actions in which a counsel fee is allowed . .. , an(cid:13) attorney seeking compensation for services or(cid:13) reimbursement of necessary expenses shall file with(cid:13) the Court an affidavit within 30 days of the entry of(cid:13) judgment or order, unless extended by the Court . . . .(cid:13) The Federal Rule, on its face, applies "[u]nless otherwise(cid:13) provided by . . . [an] order of the court." Fed. R. Civ. P.(cid:13) 54(d).(cid:13) 6(cid:13) According to the District Court, Local Rule 54.2(a)(cid:13) constituted an "order of the court" and thereby extended(cid:13) the time under Rule 54(d)(2)(B).1 The Legislature disagrees,(cid:13) arguing that the local rule is not an "order of the court." In(cid:13) its submission, District of New Jersey Local Rule 54.2(a)(cid:13) conflicts with Fed. R. Civ. P. 54(d)(2)(B), and because a local(cid:13) rule may not conflict with an applicable federal rule, see 28(cid:13) U.S.C. S 2071(a) and Fed. R. Civ. P. 83(a)(1), the New Jersey(cid:13) local rule is invalid. See Anchorage Assocs. v. Virgin Islands(cid:13) Bd. of Tax Review, 922 F.2d 168, 173 (3d Cir. 1990)(cid:13) ("District courts are authorized to prescribe rules for the(cid:13) conduct of court business so long as those rules are(cid:13) consistent with the Acts of Congress and the Federal Rules(cid:13) of Procedure.").(cid:13) The Legislature further contends that, because the(cid:13) motion for an extension of time was not timely under Fed.(cid:13) R. Civ. P. 54(d)(2)(B), the District Court abused its(cid:13) discretion in granting an extension by signing the order on(cid:13) the same day it received the plaintiffs’ request without(cid:13) providing the Legislature with an opportunity to be heard(cid:13) pursuant to Fed. R. Civ. P. 6(b)(2) before it acted on the(cid:13) motion. The plaintiffs respond that because the District of(cid:13) New Jersey Local Rule 54.2(a) is an "order of the court," it(cid:13) qualifies as an exception to the limitations period in Fed. R.(cid:13) Civ. P. 54(d)(2)(B). Thus, the plaintiffs submit that the(cid:13) District Court acted within its discretion in granting the(cid:13) extension of the time to file without notice or motion, as is(cid:13) allowed under Fed. R. Civ. P. 6(b)(1).(cid:13) Every Court of Appeals to have addressed the issue has(cid:13) decided that a local rule extending the time to file a motion(cid:13) for fees is a "standing order," and, therefore, not(cid:13) inconsistent with the federal rules. See Tire Kingdom, Inc. v.(cid:13) Morgan Tire & Auto, Inc., 253 F.3d 1332, 1335 (11th Cir.(cid:13) 2001); Walker v. City of Bogalusa, 168 F.3d 237, 239 (5th(cid:13) Cir. 1999); Eastwood v. Nat’l Enquirer, 123 F.3d 1249,(cid:13) _________________________________________________________________(cid:13) 1. We note in this regard that the rule in question was part of the corpus(cid:13) of the Local Civil and Criminal rules that were the subject of(cid:13) renumbering "to correspond to their counterparts in the Federal Rules of(cid:13) Civil and Criminal Procedure," which were adopted by the District Court(cid:13) in an Order dated April 1, 1997.(cid:13) 7(cid:13) 1257 (9th Cir. 1997); Johnson v. Lafayette Fire Fighters(cid:13) Ass’n, 51 F.3d 726, 729 (7th Cir. 1995). The rationale of(cid:13) the Fifth, Seventh, Ninth, and Eleventh Circuits is best(cid:13) described in Johnson, which was the first case to decide the(cid:13) issue and the case most cited by the other circuits in(cid:13) support of their position:(cid:13) [A] local rule is an order of the court, at least for(cid:13) purposes of Fed. R. Civ. P. 54(d)(2)(B). Local rules are(cid:13) adopted by the majority of the judges in a district to(cid:13) govern the practice and procedure of litigation in that(cid:13) district. As such, local rules are, in effect, "standing(cid:13) orders," such that [they] should be viewed as an order(cid:13) of the court . . . . And while these standing orders(cid:13) generally cannot conflict with the Federal Rules of Civil(cid:13) Procedure, the Supreme Court and Congress have(cid:13) frequently used the federal rules to adopt default rules(cid:13) of procedure that are modifiable by the districts(cid:13) through the adoption of local rules. See, e.g. , Fed. R.(cid:13) Civ. P. 26(a)(1). We believe that the 14-day filing period(cid:13) contained in Fed. R. Civ. P. 54(d)(2)(B) is one such(cid:13) default rule and that the districts are free to modify the(cid:13) filing period through local rules.(cid:13) That our reading of Fed. R. Civ. P. 54(d)(2)(B) is the(cid:13) most logical reading of the rule, is made apparent after(cid:13) considering the prior law. Before the enactment of the(cid:13) 1993 Amendments, districts were free to adopt local(cid:13) rules to govern the filing of fee petitions. See White v.(cid:13) New Hampshire Dep’t of Employment Security, 455 U.S.(cid:13) 445 (1982). After White, many districts adopted local(cid:13) rules to govern the filing of fee petitions. . . . If the(cid:13) Supreme Court and Congress wanted to preempt these(cid:13) local rules they would have done so in definite terms(cid:13) that would not place practitioners in the difficult(cid:13) position of guessing what time period governed the(cid:13) filing of fee petitions. But Fed. R. Civ. P. 54(d)(2)(B)(cid:13) does not contain clear language stripping districts of(cid:13) their power to promulgate local rules to govern the(cid:13) filing of fee petitions. Rather, the rule contains the(cid:13) ambiguous phrase "order of the court," which we do(cid:13) not believe evidences the intent of the Supreme Court(cid:13) and of Congress to so fundamentally change the law in(cid:13) this area.(cid:13) 8(cid:13) Johnson, 51 F.3d at 729.(cid:13) The District Court followed the Seventh Circuit’s(cid:13) reasoning when it concluded that there was no(cid:13) inconsistency in this case:(cid:13) [P]laintiffs’ motion to extend time to file their fee(cid:13) application was timely because [the local rule is] an(cid:13) "order of the court" which extend[s] the 14-day limit(cid:13) contained in Fed. R. Civ. P. 54(d)(2)(B). The Paoli case(cid:13) [In re Paoli R.R. Yard PCB Litig., 221 F.3d 449 (3d Cir.(cid:13) 2000)] applies to instances where a Local Rule is(cid:13) inconsistent with a Federal Rule. Fed. R. Civ. P.(cid:13) 54(d)(2)(B) provides that the Federal Rule may be(cid:13) amended by an order of the court and therefore, there(cid:13) is no inconsistency in this case.(cid:13) We agree, and conclude that District of New Jersey Local(cid:13) Rule 54.2(a) is an order of the court for the purposes of(cid:13) Fed. R. Civ. P. 54(d)(2)(B). Thus, we are satisfied that the(cid:13) plaintiffs had 30 days within which to file their application(cid:13) for attorneys’ fees (or, in this case, a motion to extend(cid:13) time). This construction seems highly appropriate in view of(cid:13) the nature of the proceeding. Consideration of fee petitions(cid:13) is often an extremely involved and time-consuming exercise(cid:13) that can be burdensome to a busy district court, and(cid:13) district courts ought to have the flexibility to control their(cid:13) own calendars with respect to such matters.(cid:13) Reviewing the District Court’s decision to grant an(cid:13) extension of time pursuant to Fed. R. Civ. P. 6(b) for abuse(cid:13) of discretion, Dominic v. Hess Oil V.I. Corp. , 841 F.2d 513,(cid:13) 516 (3d Cir. 1988), we are satisfied that the District Court(cid:13) did not abuse its discretion, pursuant to Fed. R. Civ. P.(cid:13) 6(b)(1), to grant the extension of time without motion or(cid:13) notice since the request for the extension was timely(cid:13) pursuant to Local Rule 54.2(a).2(cid:13) _________________________________________________________________(cid:13) 2. The Legislature also raises an argument with respect to the timeliness(cid:13) of the fee application for appellate work. The plaintiffs asked us to(cid:13) remand for consideration of appellate fees to the District Court or,(cid:13) alternatively, to extend the time for the plaintiffs to apply for fees. The(cid:13) Clerk referred the motion to the merits panel, granting the plaintiffs "an(cid:13) extension of time to file the petition for fees and costs until October 6,(cid:13) 9(cid:13) III. Legislative Immunity(cid:13) The Legislature is typically immune from liability under(cid:13) 42 U.S.C. S 1983 and thus cannot generally be held liable(cid:13) for fees under 42 U.S.C. S 1988. Supreme Ct. of Va. v.(cid:13) Consumers Union, 446 U.S. 719, 732-34 (1980). While(cid:13) legislative immunity protects the Legislature in its(cid:13) legislative capacity -- i.e., for promulgating the Act at issue(cid:13) in this case -- we conclude that the Legislature is not(cid:13) entitled to immunity in this case because defending the Act(cid:13) was an act outside of its legislative capacity.(cid:13) In May v. Cooperman, 578 F. Supp. 1308 (D.N.J. 1984),(cid:13) aff ’d, 780 F.2d 240 (3d Cir. 1985), the District Court for(cid:13) the District of New Jersey was faced with precisely the(cid:13) issue that we must address. The New Jersey Legislature(cid:13) enacted a "moment of silence" statute that overrode the(cid:13) Governor’s veto. When May brought suit, the Attorney(cid:13) General of New Jersey stated that he would neither defend(cid:13) the constitutionality of the statute nor discipline teachers(cid:13) _________________________________________________________________(cid:13) 2000 or until the panel issues an order deciding the motion, whichever(cid:13) occurs earlier." The merits panel subsequently addressed the motion,(cid:13) relegating "consideration in the first instance of appellate attorneys’ fees(cid:13) and costs to the District Court." The application for attorneys’ fees for(cid:13) appellate work was filed on November 20, 2000, along with the(cid:13) application for District Court fees.(cid:13) The Legislature argues that once the panel decided to remand to the(cid:13) District Court, the plaintiffs had 30 days from that decision, rendered on(cid:13) October 6, to file their fee application pursuant to L.A.R. Misc. 108.1(a).(cid:13) We disagree, and are satisfied that the District Court was correct in(cid:13) concluding that the application was timely filed. The motion filed by the(cid:13) plaintiffs, seeking an extension or remand of the application for appellate(cid:13) fees, requested that we remand to the District Court so that the issue of(cid:13) fees and costs for appellate work could be "considered with -- and on(cid:13) the same schedule as -- the issue of fees and costs for trial work." Since(cid:13) the motion requested the remand, on the same schedule as the issue of(cid:13) fees for trial work, which we granted, the logical interpretation of the(cid:13) order granting the remand is that it granted the motion to file a single(cid:13) fee request all on one schedule. Such an order is undoubtedly within our(cid:13) power. Thus, the District Court did not abuse its discretion in holding(cid:13) that the November 20, 2000 application was timely filed with respect to(cid:13) appellate fees.(cid:13) 10(cid:13) who refused to implement it. The Legislature intervened to(cid:13) defend the statute and "took an active role in defense of the(cid:13) statute, beginning the day the complaint was filed." 578 F.(cid:13) Supp. at 1310. The district court subsequently awarded(cid:13) fees against the Legislature after determining that the(cid:13) statute was unconstitutional, concluding that it was not(cid:13) entitled to immunity.(cid:13) Conceding that the Legislature was immune for(cid:13) promulgating the statute, see Consumers Union v. Virginia(cid:13) State Bar, 688 F.2d 218 (4th Cir. 1982), the court reasoned(cid:13) that the "Legislature sought to perform a task which(cid:13) normally falls to the executive branch, but which, in this(cid:13) case, the executive branch refused to perform." 578 F.(cid:13) Supp. at 1316. In this sense, the intervening legislators(cid:13) "abandoned their legislative role and took on a quasi-(cid:13) enforcement role by intervening to defend the statute.(cid:13) [Thus, t]heir legislative immunity should not protect them(cid:13) when they step outside the function for which their(cid:13) immunity was designed." Id. at 1317.(cid:13) The May court also noted that this result made practical(cid:13) sense:(cid:13) [T]he State defendants refused to defend the lawsuit(cid:13) because of a good faith belief that the statute was(cid:13) unconstitutional; the Legislature chose to intervene(cid:13) and litigate vigorously because of a strong interest it(cid:13) took in the statute. The result was that plaintiffs were(cid:13) put to extensive and costly litigation, but are unable to(cid:13) recover fees from the party from whom they would(cid:13) normally recover fees under S 1988. Were they also(cid:13) unable to recover from the defendant-intervenors, I(cid:13) believe the intent of the fee statute would be thwarted.(cid:13) If the Legislature were deemed immune, a major(cid:13) loophole would be created in the statutory scheme for(cid:13) reimbursing plaintiffs. Original defendants, otherwise(cid:13) liable for fees, could remain passive in S 1983 actions,(cid:13) leaving defense of the challenged laws to Legislatures(cid:13) or others claiming to possess immunity from fee(cid:13) liability. States, by this method, could defend(cid:13) constitutional challenges to their statutes without(cid:13) having to pay plaintiffs’ fees awards, which Congress(cid:13) 11(cid:13) has acknowledged to be "an essential remedy if private(cid:13) citizens are to have a meaningful opportunity to(cid:13) vindicate the important Congressional policies" which(cid:13) the civil rights laws contain. S. Rep. No. 94-1011, 94th(cid:13) Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. &(cid:13) Ad. News, 5908, 5909-10.(cid:13) Id. at 1317-1318.(cid:13) Although this issue was not reached on appeal when this(cid:13) Court affirmed May, see May v. Cooperman , 780 F.2d 240(cid:13) (3d Cir. 1985), we have subsequently indicated that this(cid:13) rationale is persuasive. In Daggett v. Kimmelman , 617 F.(cid:13) Supp. 1269 (D.N.J. 1985), the District Court for the District(cid:13) of New Jersey followed the reasoning of May in awarding(cid:13) attorneys fees against the New Jersey Legislature:(cid:13) [T]his court is . . . in accord with the analysis set forth(cid:13) in May v. Cooperman. The New Jersey Legislature was(cid:13) absolutely immune from an award of an attorney’s fee(cid:13) for enacting the Feldman Plan, but once the Legislature(cid:13) intervened to defend the statute, even if it did so(cid:13) because the executive branch refused to defend the(cid:13) statute, the Legislature took on a quasi-enforcement(cid:13) role, and gave up its immunity.(cid:13) Daggett, 617 F. Supp. at 1279. On appeal to this Court, the(cid:13) Legislature raised the issue of immunity, and we affirmed(cid:13) the district court’s holding because the district court(cid:13) "considered thoroughly" the contention and we agreed with(cid:13) the District Court that the "contentions lack merit." Daggett(cid:13) v. Kimmelman, 811 F.2d 793, 795 n.2 (3d Cir. 1987).(cid:13) The Legislature argues that these cases were poorly(cid:13) reasoned and are not valid precedent in light of(cid:13) Independent Federation of Flight Attendants v. Zipes , 491(cid:13) U.S. 754 (1989). Daggett, as a published opinion of this(cid:13) Court, is binding upon us unless its validity was(cid:13) undermined by Zipes, as is now argued. In Zipes, the(cid:13) Supreme Court held that the Independent Federation of(cid:13) Flight Attendants ("IFFA"), as intervenor, was not liable for(cid:13) attorneys’ fees. Noting that "district courts should . . .(cid:13) award . . . attorney’s fees against losing intervenors only(cid:13) where the intervenors’ action was frivolous, unreasonable,(cid:13) or without foundation," the Court concluded that it would(cid:13) 12(cid:13) not impose liability on the IFFA because its "cases have(cid:13) emphasized the crucial connection between liability for(cid:13) violation of federal law and liability for attorney’s fees under(cid:13) federal fee-shifting statutes." Id. at 761-62. The Court(cid:13) concluded that the IFFA-intervenors were "blameless"(cid:13) because they had not violated anyone’s civil rights.(cid:13) Moreover, the IFFA became "a party to the lawsuit not(cid:13) because it bore any responsibility for the practice alleged to(cid:13) have violated [federal law], but because it sought to protect(cid:13) the bargained-for seniority rights of its employees." Id. The(cid:13) "central fact" for the Court was thus "that[IFFA] litigated(cid:13) (and lost) not to avoid liability for violation of the law but to(cid:13) prevent TWA’s bargaining away of its members seniority(cid:13) rights in order to settle with respondents." Id. at 765-66.(cid:13) The Legislature argues that Zipes is controlling to the(cid:13) extent that it makes clear that the Legislature’s vigorous(cid:13) defense of the Act does not make it liable for fees unless its(cid:13) position was frivolous, unreasonable, or without foundation(cid:13) because the "crucial connection between liability for(cid:13) violation of federal law and liability for attorney’s fees under(cid:13) federal fee-shifting statutes" is missing in this case. Id. at(cid:13) 762. The Legislature ignores a crucial distinction between(cid:13) Zipes and this case. As we noted in Daggett , Zipes focused(cid:13) on intervenors who entered the suit to protect the interests(cid:13) of a third-party and a suit in which there was another(cid:13) defendant who would be liable for the fees. As the District(cid:13) Court in Daggett observed:(cid:13) I have serious doubts about the applicability of Zipes(cid:13) . . . . In Zipes, the Supreme Court reasoned that the(cid:13) intervenors were completely "blameless," having had no(cid:13) part in the constitutional violation of which plaintiffs(cid:13) complained, and intervened only to protect their own(cid:13) rights which were affected by a proposed settlement(cid:13) agreement between plaintiffs and defendants.(cid:13) Moreover, the Court reasoned that there were present(cid:13) in the action "guilty" defendants, who would be liable,(cid:13) in any event, for the counsel fees and costs incurred by(cid:13) plaintiffs. I question the defendants-intervenors’(cid:13) qualifications as "blameless" intervenors, in light of the(cid:13) vigorous battle fought defending an unconstitutional(cid:13) statute, and, in addition, cannot ignore the absence in(cid:13) 13(cid:13) this case of a "guilty" defendant who otherwise would(cid:13) be liable for these fees.(cid:13) Daggett v. Kimmelman, 1989 WL 120742, at *7 n.6 (D.N.J.(cid:13) July 18, 1989) (emphases added) (citations omitted).(cid:13) Similarly, in Mallory v. Harkness, 923 F. Supp. 1546(cid:13) (S.D. Fla. 1996) aff ’d, 109 F.3d 771 (11th Cir. 1997), the(cid:13) district court awarded fees against the intervenor-Attorney(cid:13) General and distinguished Zipes as follows:(cid:13) The Zipes Court concluded that making blameless(cid:13) intervenors liable for attorney’s fees simply did not(cid:13) further the purposes behind the fee shifting statutes.(cid:13) Thus, Zipes appears to establish the following rule:(cid:13) where a losing intervenor is "innocent," attorney’s fees(cid:13) will not be awarded against that intervenor unless the(cid:13) intervention was frivolous, unreasonable, or without(cid:13) foundation.(cid:13) The intervenor in Zipes, however, substantially differs(cid:13) from the AG in the case at hand. In Zipes, the(cid:13) intervenor entered the case late in the litigation to(cid:13) defend the rights of a third-party to the litigation . In(cid:13) contrast, the AG entered the case early in(cid:13) the proceedings and vigorously defended the(cid:13) constitutionality of the statute throughout the entire(cid:13) proceeding. It appears to the Court that the AG took all(cid:13) steps ordinarily taken by a defendant and, in fact,(cid:13) acted as the defendant in the case. Given these facts,(cid:13) characterizing the AG as an "innocent" or"blameless"(cid:13) intervenor would be inaccurate. The AG in the present(cid:13) case clearly played a pivotal role.(cid:13) The AG defended the unconstitutional statute(cid:13) voluntarily and in doing so attempted to aid in the(cid:13) offending statute’s enforcement.(cid:13) 923 F. Supp. at 1553 (emphasis added).(cid:13) We are persuaded by the reasoning of these courts. While(cid:13) legislatures enjoy immunity for promulgating statutes, it(cid:13) makes little sense to provide them with this immunity when(cid:13) they step out of that role. However, when a legislature feels(cid:13) it necessary to perform what is generally regarded as an(cid:13) executive function because the state executive branch(cid:13) 14(cid:13) officials named as defendants in their official capacities(cid:13) refuse to perform that function,3 the legislature is the(cid:13) functional equivalent of a defendant in the case-- without(cid:13) it, there would be no case. This is very different than the(cid:13) situation contemplated in Zipes, where the intervenor(cid:13) sought to protect the interests of a third-party; regardless(cid:13) of the intervenor, there was an underlying ongoing dispute(cid:13) between the plaintiff and the defendant. To read Zipes as(cid:13) contemplating situations like the one before us, and the(cid:13) ones at issue in May, Daggett, and Mallory, would be an(cid:13) over-extension of Zipes and would thwart the purpose of(cid:13) the fee-shifting statutes. Moreover, we find the Legislature’s(cid:13) reliance on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.(cid:13) 1989), to be misplaced, as we explain in the margin. 4 Thus,(cid:13) _________________________________________________________________(cid:13) 3. In the federal system, the Attorney General defends the(cid:13) constitutionality of an act of Congress whenever a reasonable argument(cid:13) can be made in defense of the act. See "The Attorney General’s Duty to(cid:13) Defend the Constitutionality of Statutes," 5 U.S. Op. Off. Legal Counsel(cid:13) 25, 1981 WL 30934. If the Attorney General is unable to defend an act(cid:13) of Congress, the Senate Legal Counsel is notified and may undertake the(cid:13) representation. See 2 U.S.C. S 288k.(cid:13) If New Jersey had followed a similar regime and the defense of the(cid:13) statute at issue had been performed by the state attorney general, the(cid:13) state would not be immune from fees. However, New Jersey is not(cid:13) required to follow the federal scheme. It is not obligated to maintain a(cid:13) separation of powers mirroring that of the federal government. It is free(cid:13) to assign what are generally regarded as executive functions to the(cid:13) legislature, and that, in effect, is what has occurred in this case and the(cid:13) other cases noted above in which the Legislature undertook the task of(cid:13) defending the constitutionality of a state law. But New Jersey cannot(cid:13) escape an obligation under federal law to pay attorneys’ fees by(cid:13) assigning this function to the Legislature.(cid:13) 4. The Legislature relies on Thorstenn v. Barnard, 883 F.2d 217 (3d Cir.(cid:13) 1989), in support of its position that Zipes is controlling. In that case,(cid:13) the plaintiffs sued the Chairman of the Committee of Bar Examiners of(cid:13) the Virgin Islands in a challenge to the residency requirement. The Bar(cid:13) Association intervened. Plaintiffs ultimately won and the Bar Association(cid:13) disputed its liability for the fee award. This Court concluded that the(cid:13) Association, as a blameless intervenor, was not liable since it had(cid:13) imposed no additional burden on the defendant. The case before us is(cid:13) different in that the presence of the Chairman as a defendant in(cid:13) Thorstenn meant both that there was someone liable for the fees(cid:13) 15(cid:13) we conclude that the Legislature is not entitled to immunity(cid:13) in this situation, where it has stepped out of the role for(cid:13) which immunity is provided.(cid:13) IV. District Court’s Award of Fees(cid:13) The Legislature raises several arguments with respect to(cid:13) the award of attorneys’ fees: (1) whether the Court(cid:13) adequately explained the basis for its decision; (2) whether(cid:13) the District Court erred in failing to hold an evidentiary(cid:13) hearing on the "reasonable hourly rate"; and (3) whether(cid:13) the Court abused its discretion in determining what hours(cid:13) were eligible for compensation. We review de novo the(cid:13) standards and procedures applied by the District Court in(cid:13) determining attorneys’ fees, as it is a purely legal question.(cid:13) Smith v. Philadelphia Housing Auth., 107 F.3d 223, 225 (3d(cid:13) Cir. 1997). We review the findings of fact for clear error.(cid:13) Washington v. Philadelphia County Ct. of Common Pleas, 89(cid:13) F.3d 1031, 1035 (3d Cir. 1996). The reasonableness of a fee(cid:13) award itself is reviewed for abuse of discretion, Loughner v.(cid:13) Univ. of Pittsburgh, 260 F.3d 173, 177 (3d Cir. 2001), but(cid:13) a court abuses its discretion when its ruling is founded on(cid:13) an error of law or a misapplication of law to the facts, Doe(cid:13) v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 154 (3d Cir.(cid:13) 1999). For the reasons set forth in the margin, we agree(cid:13) with the Legislature’s claim that the District Court erred in(cid:13) determining the reasonable hourly rate, and we therefore(cid:13) vacate and remand for an evidentiary hearing.5 We turn to(cid:13) the remaining issues.(cid:13) _________________________________________________________________(cid:13) notwithstanding the fact that the Bar Association was not, and that the(cid:13) claims raised by the Bar Association were duplicative of a present(cid:13) defendant. In this case, there would have been no litigation without the(cid:13) Legislature’s intervention and so the rationale of Thorstenn -- that the(cid:13) intervenor "imposed no additional burden on plaintiffs in the litigation"--(cid:13) is not applicable. 883 F.2d at 219-220.(cid:13) 5. A prevailing party in a S 1983 action is entitled to reasonable(cid:13) attorneys’ fees and costs under 42 U.S.C. S 1988. A reasonable fee is one(cid:13) "adequate to attract competent counsel, but which does not produce(cid:13) windfalls to attorneys." PIRG v. Windall, 51 F.3d 1179, 1185 (3d Cir.(cid:13) 1995) (citation omitted). A reasonable hourly rate multiplied by a(cid:13) 16(cid:13) A. Hours Expended(cid:13) The Legislature contends that the District Court abused(cid:13) its discretion by awarding fees for some of the hours that(cid:13) the plaintiffs requested. For work to be included in the(cid:13) calculation of reasonable attorneys’ fees, the work must be(cid:13) " ‘useful and of a type ordinarily necessary’ to secure the(cid:13) final result obtained from the litigation." Pennsylvania v.(cid:13) Del. Valley Citizens’ Council, 478 U.S. 546, 561 (1986).(cid:13) 1. Award of Fees to be Vacated and Remanded(cid:13) A district court "must explain on the record the reasons(cid:13) for its decisions." Rode v. Dellarciprete, 892 F.2d 1177,(cid:13) 1187 (3d Cir. 1990); see also Pa. Envtl. Def. Found. v.(cid:13) Canon-McMillan Sch. Dist., 152 F.3d 228, 232 (3d Cir. 1998)(cid:13) ("[T]he district court must provide a concise but clear(cid:13) explanation of its reasons for [a] fee award.") (internal(cid:13) quotation marks and citation omitted). "[I]f the district(cid:13) court’s fee-award opinion is so terse, vague, or conclusory(cid:13) that we have no basis to review it, we must vacate the fee-(cid:13) award order and remand for further proceedings." Gunter v.(cid:13) _________________________________________________________________(cid:13) reasonable number of hours expended -- the "lodestar" -- is the(cid:13) presumptively reasonable fee. Loughner v. Univ. of Pittsburgh, 260 F.3d(cid:13) 173, 177 (3d Cir. 2001); Hensley v. Eckerhart , 461 U.S. 424 (1983). A(cid:13) reasonable rate is the prevailing market rate in the relevant community.(cid:13) Loughner, 260 F.3d at 180. The Legislature contends that the District(cid:13) Court failed to conduct an evidentiary hearing on the "reasonable hourly(cid:13) rate" component of the lodestar and that this constitutes reversible error.(cid:13) See Hurley v. Atlantic City Police Dep’t, 174 F.3d 95, 131-32 (3d Cir.(cid:13) 2000) (relying on generalized sense of what is customary and proper in(cid:13) calculating hourly rates rather than evidence was reversible error). We(cid:13) have held that if "hourly rates are disputed, the district court must(cid:13) conduct a hearing to determine the reasonable market rates." Smith v.(cid:13) Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir. 1997); see also(cid:13) Lanni v. State of N.J., 259 F.3d 146, 149 (3d Cir. 2001). The District(cid:13) Court did not hold an evidentiary hearing, notwithstanding the fact that(cid:13) such rates were disputed by the six affidavits filed by the Legislature.(cid:13) Thus, the District Court committed reversible error, and we vacate the(cid:13) award to that extent and remand to the District Court for an evidentiary(cid:13) hearing on the reasonableness of the hourly rates sought by the(cid:13) plaintiffs.(cid:13) 17(cid:13) Ridgewood Energy Corp., 223 F.3d 190, 196 (3d Cir. 2000).(cid:13) In addition, as noted above, see supra note 5, if "hourly(cid:13) rates are disputed, the district court must conduct a(cid:13) hearing to determine the reasonable market rates." Smith v.(cid:13) Philadelphia Housing Auth., 107 F.3d 223, 225 (3d Cir.(cid:13) 1997); see also Lanni v. State of N.J., 259 F.3d 149, 149 (3d(cid:13) Cir. 2001). Because we conclude that the District Court’s(cid:13) fee award with respect to the following challenged requests(cid:13) are "vague" and "conclusory" -- thereby hindering our(cid:13) ability to review them -- or because the hourly rate for the(cid:13) work was challenged and no evidentiary hearing was held,(cid:13) we will vacate the following fee awards and remand for(cid:13) further proceedings. Id.(cid:13) a. Delegable Tasks(cid:13) The Legislature challenges 18.25 billed hours for tasks(cid:13) that, it argues, could have easily been delegated to non-(cid:13) professionals such as paralegals, secretaries, and couriers,(cid:13) including such tasks as document review, exhibit(cid:13) preparation, and reviewing citations. In Halderman v.(cid:13) Pennhurst State School & Hosp., we stated:(cid:13) We have cautioned on a number of occasions that(cid:13) when a lawyer spends time on tasks that are easily(cid:13) delegable to non-professional assistance, legal service(cid:13) rates are not applicable. We cannot condone "the(cid:13) wasteful use of highly skilled and highly priced talent(cid:13) for matters easily delegable to non-professionals."(cid:13) 49 F.3d 939, 942 (3d Cir. 1995) (citation omitted). The(cid:13) District Court concluded that it was not "convinced the(cid:13) work should have been delegated to a non-professional."(cid:13) While the plaintiffs submit that the District Court did not(cid:13) abuse its discretion in concluding that these hours were(cid:13) not easily delegable, we are unable to make a determination(cid:13) based on the opinion of the District Court. The plaintiffs(cid:13) point out that "it would be unreasonable to expect(cid:13) attorneys to delegate every ministerial duty they perform(cid:13) because ‘the time spent delegating the task could well(cid:13) exceed the time spent by the attorney’ performing the task(cid:13) herself," and that, "each of these tasks did not take up(cid:13) much of the attorneys’ time." Marisol A. v. Giuliani, 111 F.(cid:13) 18(cid:13) Supp. 2d 381, 395 (S.D.N.Y. 2000). However, we do not(cid:13) know from the District Court opinion what tasks were at(cid:13) issue here, and who performed these tasks -- either senior(cid:13) or junior level attorneys. Moreover, there is an issue of the(cid:13) appropriate hourly rate for the performance of such tasks,(cid:13) which will require an evidentiary hearing. See supra note 5.(cid:13) We therefore vacate and remand the award of fees for(cid:13) delegable tasks pursuant to Gunter, supra.(cid:13) b. Travel Time(cid:13) Out-of-pocket expenses are included in the concept of(cid:13) "attorneys’ fees" as "incidental and necessary expenses(cid:13) incurred in furnishing effective and competent(cid:13) representation," and thus are authorized by S 1988. See(cid:13) Remarks of Congressman Drinan, 122 Cong. Rec. H12160(cid:13) (daily ed. 1 Oct. 1976). The authority granted inS 1988 to(cid:13) award a "reasonable attorneys’ fee" includes the authority(cid:13) to award "reasonable out-of-pocket expenses . . . normally(cid:13) charged to a fee-paying client, in the course of providing(cid:13) legal services." Associated Builders & Contractors of La., Inc.(cid:13) v. The Orleans Parish Sch. Bd., 919 F.2d 374, 380 (5th Cir.(cid:13) 1990). The Supreme Court held in Missouri v. Jenkins, 491(cid:13) U.S. 274 (1989), addressing the "more difficult question [of](cid:13) how [additional out-of-pocket expenses are] to be valuated(cid:13) in calculating the overall attorney’s fee," id. at 285, that(cid:13) "the prevailing practice in a given community" is to govern(cid:13) whether such out-of-pocket expenses are billed separately,(cid:13) and whether they are billed at cost or at market rates. Id.(cid:13) at 288.(cid:13) Heeding the admonition in Jenkins, we have observed(cid:13) that travel time is an out-of-pocket expense underS 1988(cid:13) that is generally recoverable "when it is the custom of(cid:13) attorneys in the local community to bill their clients(cid:13) separately for [it]." Abrams v. Lightolier Inc., 50 F.3d 1204,(cid:13) 1225 (3d Cir. 1995) (looking to S 1988 cases to determine(cid:13) whether to award out-of-pocket expenses in a case under(cid:13) the New Jersey Law Against Discrimination). Implicitly(cid:13) rejecting the contention of the defendants that travel time(cid:13) is not compensable, the District Court awarded it, but there(cid:13) is no indication that the District Court reviewed any(cid:13) evidence that this was the custom in New Jersey-- the(cid:13) 19(cid:13) relevant, local community -- as it should have. However,(cid:13) the District Court’s ultimate conclusion was not in error, as(cid:13) travel time is apparently compensable in New Jersey. See,(cid:13) e.g., Abrams, 50 F.3d at 1225 (predicting that the New(cid:13) Jersey Supreme Court would hold that travel time and(cid:13) expenses are recoverable as party of an attorneys’ fee(cid:13) award); H.I.P. v. Hovnania, 676 A.2d 1166, 1176 (N.J.L.(cid:13) Div. 1996) (awarding fees for travel time).(cid:13) The Legislature also challenges the rate at which such(cid:13) travel time should be compensated. Again, this issue is(cid:13) guided by Jenkins and the holding that a court must look(cid:13) to the practice in the local community. In this case, the(cid:13) District Court awarded fees for travel time billed at the(cid:13) maximum rate, yet there is no indication that this is the(cid:13) practice in New Jersey. The Legislature contends that the(cid:13) hourly rate for travel time should be no more than $100.(cid:13) See ARC v. Voorhees, 986 F. Supp. 261, 271-72 (D.N.J.(cid:13) 1997); H.I.P., 676 A.2d at 1176. We note, however, that in(cid:13) the cases cited by the Legislature, the parties requested(cid:13) $100 compensation for travel time and were awarded that(cid:13) amount. This case presents a situation in which the hourly(cid:13) rate for travel time is disputed. Therefore, the best course(cid:13) of action is to remand for a determination of the(cid:13) appropriate rate pursuant to Smith v. Philadelphia Housing(cid:13) Auth., 107 F.3d 223, 225 (3d Cir. 1997) (concluding that if(cid:13) there is a dispute as to hourly rates, the district court must(cid:13) conduct a hearing to determine the reasonable market rate)(cid:13) and Jenkins, 491 U.S. at 287-88 (concluding that "the(cid:13) prevailing practice in a given community" is to govern(cid:13) whether such out-of-pocket expenses are billed separately,(cid:13) and whether they are billed at cost or at market rates).(cid:13) Thus, while we agree that reasonable travel time may be(cid:13) compensated, we vacate that aspect of the award, and(cid:13) remand for an evidentiary hearing to determine the(cid:13) appropriate hourly rate at which the plaintiffs should be(cid:13) compensated.(cid:13) c. Time Litigating the Fee Application.(cid:13) A party entitled to an award of attorneys’ fees is also(cid:13) entitled to reimbursement for the time spent litigating its(cid:13) fee application. See Prandini v. Nat’l Tea Co. , 585 F.2d. 47,(cid:13) 20(cid:13) 53 (3d Cir. 1978). However, as the Supreme Court observed(cid:13) in Hensley v. Eckerhart, 461 U.S. 424 (1982), a "request for(cid:13) attorney’s fees should not result in a second major(cid:13) litigation." 461 U.S. at 437. The Legislature argues that the(cid:13) amount of time devoted to the fee litigation and(cid:13) compensated for by the District Court was excessive. In(cid:13) addition, the Legislature challenges the District Court’s(cid:13) conclusion that the hours billed to prepare the fee(cid:13) application should be compensated at the same hourly rate(cid:13) as the work performed on the merits of the case because(cid:13) the application "involve[d] several complex issues and(cid:13) extensive research."(cid:13) Although the Legislature argued that the hours were(cid:13) excessive, nowhere does the District Court address this(cid:13) contention. In addition, there seems to be a conflict(cid:13) between the Legislature and the plaintiffs as to how many(cid:13) hours were actually claimed for compensation. The(cid:13) Legislature contends that 61.7 hours were expended on the(cid:13) initial fee papers and that 64.5 hours were spent on the fee(cid:13) litigation that arose out of the initial request for fees. As we(cid:13) read the record, the plaintiffs requested 29.3 hours on the(cid:13) initial petition and 64.5 hours for litigating the fee petition.(cid:13) However, it is not clear from the District Court’s opinion(cid:13) precisely for how many hours the plaintiffs were(cid:13) compensated in the award for time spent on the fee(cid:13) application. Because the District Court performed scant(cid:13) analysis, if any, of the hours, there are no findings on the(cid:13) reasonableness of the plaintiffs’ claim. Thus, we"have no(cid:13) basis for determining the reasonableness or accuracy" of(cid:13) the District Court’s award. Loughner v. Univ. of Pittsburgh,(cid:13) 260 F.3d 173, 179 (3d Cir. 2001).(cid:13) In addition, with respect to the Legislature’s contention(cid:13) as to the appropriate hourly rate for work on the fee(cid:13) petition, all that was said by the District Court is that the(cid:13) hours will be compensated at the same hourly rate as the(cid:13) work performed on the merits. Yet, as we have previously(cid:13) stated, a district court must hold an evidentiary hearing(cid:13) when rates are disputed. Smith v. Philadelphia Housing(cid:13) Auth., 107 F.3d 223, 225 (3d Cir. 1997).(cid:13) We will vacate the award of fees for work performed on(cid:13) the fee petition and remand for further proceedings(cid:13) 21(cid:13) pursuant to Gunter, supra, and we also remand for an(cid:13) evidentiary hearing to determine the hourly rate pursuant(cid:13) to Smith, 107 F.3d at 225.(cid:13) d. Oral Argument Preparation(cid:13) The Legislature argues that the District Court abused its(cid:13) discretion in awarding 121 hours for preparation for the(cid:13) oral argument for the merits appeal. Included in these(cid:13) hours are 25.5 hours of moot court time and 4.5 hours of(cid:13) observing oral argument before this Court. The District(cid:13) Court held that it could not "conclusively find that [those(cid:13) hours] were unreasonable and unnecessary. Furthermore,(cid:13) the Court does not find the additional hours billed by(cid:13) plaintiffs preparation of the appeal to be excessive as(cid:13) plaintiffs were required to respond to thirteen (13) issues(cid:13) listed by the Legislative Defendants for appeal."(cid:13) In Maldonado v. Houstoun, 256 F.3d 181 (3d Cir. 2001),(cid:13) we stated:(cid:13) A reasonable fee for hours spent preparing for a legal(cid:13) argument should be limited to hours reasonably(cid:13) necessary for a lawyer to become familiarized with the(cid:13) facts and the law pertaining to the issue to be argued,(cid:13) an analysis of the opponent’s argument, and questions(cid:13) anticipated to be posed by the court. Under the fee(cid:13) shifting statute, the losing party is expected to pay for(cid:13) hours reasonably spent in the argument and its(cid:13) preparation, but not for excessive hours, or hours spent(cid:13) in learning or excessively rehearsing appellate(cid:13) advocacy.(cid:13) 256 F.3d at 187 (emphasis added). Under Maldonado, time(cid:13) spent rehearsing oral advocacy, i.e., "moot court," may be(cid:13) compensated as long as the time requested is not(cid:13) "excessive." The District Court made no mention of(cid:13) Maldonado, deciding instead that it could find no reason(cid:13) why these hours were "unreasonable" or "unnecessary." Yet(cid:13) 25.5 hours of moot court time seems excessive within the(cid:13) meaning of Maldonado. Even assuming that an oral(cid:13) argument is 30 minutes per side, 25.5 hours would enable(cid:13) a lawyer to practice his argument over 50 times. We(cid:13) assume that litigators have a baseline competency in oral(cid:13) 22(cid:13) advocacy that does not require such extensive rehearsal at(cid:13) the possible expense of an opposing litigant. We will(cid:13) therefore vacate this award of fees, remanding to the(cid:13) District Court for a determination of the reasonable number(cid:13) of hours for which the plaintiffs may be compensated.(cid:13) In addition, while Maldonado permits compensation for(cid:13) preparing for oral argument, we will not permit(cid:13) compensation for observation of the Court to which(cid:13) argument will be made. While such observation may be(cid:13) generally instructive, it is the kind of thing that should be(cid:13) part of a lawyer’s general experience, not charged to a(cid:13) specific case. Therefore we will vacate the District Court’s(cid:13) award of such fees.(cid:13) As for the remaining 61 hours, to which there is only a(cid:13) generalized exception, the District Court noted that the(cid:13) plaintiffs were "required to respond to thirteen (13) issues(cid:13) listed by the Legislative Defendants for appeal." While the(cid:13) plaintiffs are certainly entitled to compensation for hours(cid:13) that are not "excessive" under Maldonado , given the generic(cid:13) nature of both the challenge to such fees and the(cid:13) determination that they are reasonable, we "have no basis(cid:13) for determining the reasonableness or accuracy" of the(cid:13) District Court’s award although we are here faced with a(cid:13) challenge to it. Loughner v. Univ. of Pittsburgh , 260 F.3d(cid:13) 173, 179 (3d Cir. 2001). We will therefore vacate the award(cid:13) of fees for the remaining 61 hours spent preparing for oral(cid:13) argument and remand for further proceedings.(cid:13) e. Researching and Writing Briefs(cid:13) The District Court approved 365 hours for briefing in the(cid:13) District Court and 564 hours for briefing the merits appeal.(cid:13) The District Court found "the hours [sought] regarding(cid:13) preparation of briefs to be reasonable given the complex(cid:13) and unprecedented nature of this action." In addition, the(cid:13) District Court noted that "counsel for the Legislative(cid:13) Defendants billed substantially more hours than[those for(cid:13) which] plaintiffs seek reimbursement." Indeed, the(cid:13) Legislature billed 902 hours for the merits appeal.(cid:13) According to the District Court, this supported its(cid:13) determination that the plaintiffs’ request for compensation(cid:13) was reasonable, especially given the nature of the case.(cid:13) 23(cid:13) On appeal, the Legislature’s argument consists of nothing(cid:13) more than the following retort to the District Court’s(cid:13) conclusion:(cid:13) All plaintiffs had to do -- and all they did -- was rely(cid:13) on existing abortion jurisprudence and insist that(cid:13) partial-birth abortions are no different from other(cid:13) abortions. Nothing ‘complex’ or ‘unprecedented’ was(cid:13) involved. The Legislature did the heavy lifting, so it is(cid:13) no surprise that its attorneys billed more time.(cid:13) While we disagree with the Legislature’s contention that(cid:13) this was "all" that the plaintiffs had to do, we do think that(cid:13) the amount of hours spent briefing is excessive. However,(cid:13) the District Court’s opinion offers no basis for review. See(cid:13) Loughner v. Univ. of Pittsburgh, 260 F.3d 173, 179 (3d Cir.(cid:13) 2001). Pursuant to Gunter, supra, we will vacate the award(cid:13) of fees for time spent on briefing this case, both in the(cid:13) District Court and in this Court, and remand for further(cid:13) proceedings.(cid:13) 2. Award of Fees to be Affirmed(cid:13) The fee awards to be discussed in this segment of the(cid:13) opinion are supported by "a concise but clear explanation"(cid:13) of the District Court’s reasons for the fee award. See Pa.(cid:13) Environ. Def. Foundation v. Canon-McMillan School Dist.,(cid:13) 152 F.3d 228, 232 (3d Cir. 1998). Moreover, we agree with(cid:13) the District Court that the plaintiffs’ work in the areas(cid:13) described infra was " ‘useful and of the type ordinarily(cid:13) necessary’ to secure the final result obtained from the(cid:13) litigation." Pennsylvania v. Del. Valley Citizens’ Council, 478(cid:13) U.S. 546, 561 (1986) (citation omitted). In addition to the(cid:13) arguments we will discuss, the Legislature also makes an(cid:13) argument that the District Court erred in holding that the(cid:13) description of the work done during 391.75 hours out of(cid:13) the total number of hours billed were specific enough for an(cid:13) award of fees. We explain our disagreement with the(cid:13) Legislature on this point in the margin.6 (cid:13) _________________________________________________________________(cid:13) 6. A fee petition must be specific enough for a court "to determine if the(cid:13) hours claimed are unreasonable for the work performed." Washington v.(cid:13) Philadelphia County Ct. of Common Pleas, 89 F.3d 1031, 1037 (3d Cir.(cid:13) 24(cid:13) a. The Expert Who Did Not Testify(cid:13) The Legislature argues that 120 hours of work performed(cid:13) by an expert, Dr. Carolyn Westhoff, was not useful and no(cid:13) fees should be awarded for time spent preparing her for(cid:13) testimony when she was, in fact, never called to testify. The(cid:13) District Court concluded that the time spent on Dr.(cid:13) Westhoff was "compensable as it was both successful and(cid:13) useful to the Court in formulating its findings of fact." See(cid:13) Planned Parenthood v. Verniero, 41 F. Supp. 2d 478, 483(cid:13) n.1 (D.N.J. 1998) (district court merits decision relying on(cid:13) declaration of Westhoff). The plaintiffs spent approximately(cid:13) 120 hours on work relating to Westhoff ’s anticipated trial(cid:13) testimony, but she never testified, as the District Court(cid:13) observed, because "when time ran over [she] could not be(cid:13) rescheduled as a result of scheduling conflicts." Instead,(cid:13) Dr. Westhoff ’s declaration was admitted into evidence in(cid:13) redacted form and then relied upon in the findings of fact.(cid:13) The plaintiffs not only prepared Dr. Westhoff for a two-(cid:13) phase deposition taken by the Legislature, but also(cid:13) successfully opposed the Legislature’s motion to exclude(cid:13) her testimony, and prepared her for direct and cross-(cid:13) examination. As noted above, the day her examination was(cid:13) scheduled, testimony ran over and because of the(cid:13) schedules of the court, the Legislature’s witness, and Dr.(cid:13) _________________________________________________________________(cid:13) 1996) (internal quotation marks and citation omitted). As we have(cid:13) observed:(cid:13) [A] fee petition should include "some fairly definite information as to(cid:13) the hours devoted to various general activities, e.g., pretrial(cid:13) discovery, settlement negotiations, and the hours spent by various(cid:13) classes of attorneys, e.g., senior partners, junior partners,(cid:13) associates." However, "it is not necessary to know the exact number(cid:13) of minutes spent nor the precise activity to which each hour was(cid:13) devoted nor the specific attainments of each attorney."(cid:13) Id. at 1037-38 (quoting Rode v. Dellarciprete, 892 F.2d 1177(cid:13) (3d Cir. 1990)). We have reviewed the time entries that the(cid:13) Legislature complains about and agree with the District(cid:13) Court that these entries are sufficiently specific. We(cid:13) therefore affirm the District Court’s award of fees for those(cid:13) hours.(cid:13) 25(cid:13) Westhoff, rescheduling was difficult and a stipulation was(cid:13) negotiated whereby twenty-seven of the thirty-six(cid:13) paragraphs in her declaration were admitted instead of live(cid:13) testimony.(cid:13) The plaintiffs’ preparation was necessary since they could(cid:13) not have known that Dr. Westhoff was not going to testify(cid:13) and could not have announced their intention to admit the(cid:13) declaration without the Legislature’s having the opportunity(cid:13) to depose her and agree not to cross-examine her.(cid:13) Moreover, her work product was used in the trial. In light(cid:13) of the aforementioned, the District Court did not abuse its(cid:13) discretion in concluding that the attorneys did not waste(cid:13) time on the work they did with respect to Dr. Westhoff, and(cid:13) that such work was compensable within the meaning of(cid:13) Delaware Valley, supra, and we therefore affirm the award(cid:13) of these fees.(cid:13) b. The Unsuccessful Summary Judgment Motion (cid:13) Included in the fee award are 123.8 hours spent(cid:13) preparing a summary judgment motion that was never(cid:13) accepted for filing and was never considered on the merits.(cid:13) The District Court concluded that this time was(cid:13) compensable since the plaintiffs "relied" on their summary(cid:13) judgment brief, upon order of the District Court, instead of(cid:13) filing a post-trial brief, which made the work on the motion(cid:13) "necessary," "successful," and "useful." We conclude that(cid:13) the District Court did not abuse its discretion in(cid:13) determining that these hours were compensable and that(cid:13) its explanation was clear, concise, and, therefore, sufficient.(cid:13) Since the summary judgment brief was eventually(cid:13) submitted in lieu of a pre-trial brief, and a post-trial brief,(cid:13) the work was certainly "necessary" and "useful," and we(cid:13) therefore affirm the award of fees.(cid:13) c. "Learning Curve" Time(cid:13) The District Court permitted recovery of fees for 19.5(cid:13) hours spent by newly-assigned attorneys getting"up-to-(cid:13) speed" on the plaintiffs’ case. As the District Court stated,(cid:13) "While the Court agrees that the losing party should not be(cid:13) expected to pay for the time a prevailing party spends(cid:13) 26(cid:13) coming up to speed on an area of law it is unfamiliar with,(cid:13) the time a party spends reviewing the facts and underlying(cid:13) documents of a case is compensable." We agree. The(cid:13) Legislature cites authority for the proposition that hours(cid:13) billed as a result of "re-staffing" the case at will cannot be(cid:13) recovered, see, e.g., Marisol A. v. Giuliani, 111 F. Supp. 2d(cid:13) 381, 395-96 (S.D.N.Y. 2000) (decreasing award of fees(cid:13) because of excessive turnover), but that case is(cid:13) distinguishable because there was no excessive re-staffing(cid:13) here.(cid:13) In short, there is no indication that these attorneys were(cid:13) not "necessary" to securing the outcome in the case. As(cid:13) such, it would be "necessary" for them to spend time(cid:13) getting "up-to-speed" on the case to be of assistance. In(cid:13) addition, 19.5 hours is not much time for two attorneys(cid:13) who are getting up-to-speed on a fairly complex and high-(cid:13) profile case. We find no abuse of discretion, and therefore(cid:13) affirm this aspect of the fee award.(cid:13) d. Alleged Overstaffing(cid:13) The Legislature submits that the plaintiffs’ case was(cid:13) overstaffed and that the District Court erred in rejecting the(cid:13) Legislature’s objection to multiple billings. The District(cid:13) Court concluded that:(cid:13) the complexity and specialized medical knowledge(cid:13) necessary for the proper presentation of this case(cid:13) warranted the utilization of multiple attorneys. . ..(cid:13) Plaintiffs’ case was efficiently staffed . . . .[C]ounsel(cid:13) were assigned specific tasks . . . . Given that this case(cid:13) was essentially a case of first impression and that the(cid:13) issues involved were complex and very technical, the(cid:13) Court finds plaintiffs’ staffing of multiple attorneys to(cid:13) be reasonable and necessary to provide adequate(cid:13) representation for plaintiffs.(cid:13) The District Court also found that, even when an attorney(cid:13) was not addressing questions to a witness or presenting(cid:13) argument to the court, counsel "provided necessary support(cid:13) for each other."(cid:13) We have written that, "[i]n many cases, the attendance of(cid:13) additional counsel representing the same interests as the(cid:13) 27(cid:13) lawyers actually conducting" the litigation is"wasteful and(cid:13) should not be included in a request for counsel fees from(cid:13) an adversary." Halderman v. Pennhurst State Sch. & Hosp.,(cid:13) 49 F.3d 939, 943 (3d Cir. 1995). We have thus often(cid:13) disallowed compensation for more than one lawyer(cid:13) performing either trial or office work. See, e.g., Lanni v.(cid:13) State of N.J., 259 F.3d 146 (3d Cir. 2001). However, we(cid:13) conclude that the District Court did not abuse its discretion(cid:13) in rejecting the Legislature’s claim of overstaffing. This case(cid:13) presented multiple, complex legal questions and was an(cid:13) issue of first impression, decided prior to the Supreme(cid:13) Court’s decision in Stenberg v. Carhart, 530 U.S. 914(cid:13) (2000), in which the Court struck down the Nebraska(cid:13) partial birth abortion statute similar to the one at issue in(cid:13) this case. Given the nature of the case, even the Legislature(cid:13) found it necessary to use "other partner-level attorneys"(cid:13) and "associates, law clerks and paralegals." Quite simply,(cid:13) the magnitude of the case mandated the help of numerous(cid:13) attorneys for both parties.(cid:13) Moreover, plaintiffs’ declarations establish appropriate(cid:13) staffing by demonstrating that the various attorneys were(cid:13) assigned specific tasks. Even if the attorneys had worked(cid:13) on similar tasks, this would not be per se duplicative. As(cid:13) the First Circuit has noted, "[c]areful preparation often(cid:13) requires collaboration and rehearsal." Rodriguez-Hernandez(cid:13) v. Miranda-Velez, 132 F.3d 848, 860 (1st Cir. 1988); see(cid:13) also Delph v. Dr. Pepper Bottling Co., 130 F.3d 349, 358-59(cid:13) (8th Cir. 1997) (refusing to reduce hours for multiple(cid:13) counsel). Given the nature of the case, and, as noted by the(cid:13) District Court, "the complexity and specialized medical(cid:13) knowledge necessary for the proper presentation of this(cid:13) case," we cannot say that the District Court clearly erred in(cid:13) concluding that plaintiffs’ case was not overstaffed. We(cid:13) therefore affirm the District Court’s award of these fees.(cid:13) V. Conclusion(cid:13) We conclude that the District of New Jersey Local Rule(cid:13) 52(a) is an "order of the court" for purposes of Fed. R. Civ.(cid:13) P. 54(d), thereby extending the time to file a fee application.(cid:13) Thus, we affirm the District Court’s order granting the(cid:13) plaintiffs an extension of time to file their fee application.(cid:13) 28(cid:13) We also conclude that when a legislature steps out of its(cid:13) traditional role of promulgating statutes and intervenes to(cid:13) defend the constitutionality of an act which the executive(cid:13) branch is unwilling to defend, it becomes the functional(cid:13) equivalent of a defendant and may be liable for attorneys’(cid:13) fees.(cid:13) We vacate the order and remand to the District Court for(cid:13) an evidentiary hearing on the reasonable hourly rate. With(cid:13) respect to the particular challenges to the fee award in this(cid:13) case, we vacate the order and remand to the District Court(cid:13) for development of the record and further factual findings(cid:13) with respect to the award of fees for: 1) delegable tasks; 2)(cid:13) travel time; 3) time spent on the fee petition; 4) oral(cid:13) argument preparation; and 5) researching and writing(cid:13) briefs. We affirm the District Court’s order awarding fees(cid:13) for: 1) work performed by Dr. Westhoff; 2) the unsuccessful(cid:13) summary judgment motion; 3) time spent by new attorneys(cid:13) who were getting "up to speed" on the case; and 4) the so-(cid:13) called "ambiguous" time entries.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 29
