Unpublished Disposition, 852 F.2d 1290 (9th Cir. 1987)

ORDER

The defendants in this class action, brought under 42 U.S.C. § 1983, appeal the district court's award of attorneys' fees to the plaintiff class pursuant to 42 U.S.C. § 1988, and its apportionment of those fees between local school and state government defendants. The underlying litigation culminated in a consent decree approved by the district court on May 19, 1983. The parties agreed that the plaintiffs prevailed for purposes of section 1988, but failed to agree on an appropriate amount of attorneys' fees and costs. Consequently, the district court ruled on the plaintiff class's attorney fee application, making an interim award on March 4, 1986 and a final award on April 30, 1987.

The interim award of attorneys' fees was for a total of $400,000, 75% of which was paid by the local school defendants and 25% of which was paid by the state government defendants. In the final award, the court approved lodestar attorneys' fees in the amount of $1,177,421.51 and an upward adjustment of 100%. The court ordered reimbursement of reasonable and justifiable costs in the amount of $442,762.30. The total award, incorporating lodestar, adjustment, and costs is $2,797,605.32. The district court ordered this amount, minus the $400,000 interim award already paid, to be apportioned 87 1/2% to the local school defendants and 12 1/2 to the state government defendants. The apportionment of the interim award and the final award together reflected the percentage of time spent by plaintiffs' counsel on the policies of the local school defendants and those of the state government defendants respectively. The district court stated that the apportionment of the final award took into account the allocation made in the earlier interim award of 75%-25%.

We find the award of the amount of lodestar attorneys' fees and costs to be within the district court's sound discretion and affirm both their award and amount. E.g., Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986). Moreover, we order them to be paid as soon as possible after issuance of this order. We vacate the district court's award of a 100% upward adjustment of the lodestar amount and remand for reconsideration in light of the Supreme Court's opinion in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 107 S. Ct. 3078 (1987), which was not decided until after the entry of the district court's judgment in this matter. Finally we affirm the standard used by the district court for apportionment of the attorneys' fees award, which was the percentage of plaintiffs' counsel's time spent on each defendant's policies. See Southwest Legal Defense Group v. Adams, 657 F.2d 1118, 1126 (9th Cir. 1981). However, in view of our order that the lodestar fees be paid immediately but that the adjustment be reconsidered, we vacate the actual percentages used by the district court to apportion the final award and remand for recalculation. We order this recalculation not out of any disapproval of the apportionment, but rather because the 87 1/2-12 1/2 split was based on the total fee awarded together with the earlier 75%-25% apportionment of the interim award and may no longer accurately reflect the district court's finding of the amount of time spent by plaintiffs' counsel on the defendants' respective policies.

Any award of attorneys' fees and costs on this appeal shall await the ultimate disposition of this case.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.