On April 2, 1983, I determined that Atlantic City's (the City) amended affirmative action plan (the Plan) as was contained in Ordinance No. 24 of 1993 (Ordinance 24) was constitutional on its face. Feriozzi v. Atlantic City, 266 N.J. Super. 124, 628 A.2d 821 (Law Div.1993). Ordinance 24 was enacted after plaintiff*fn1 filed suit challenging the original affirmative action plan, alleging that it was violative of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, and discriminated against nonminorities under the New Jersey Constitution and 42 U.S.C.A. § 1983. Plaintiff now argues it is entitled to both damages under 42 U.S.C.A. § 1983 (§ 1983) and counsel fees under 42 U.S.C.A. § 1988 (§ 1988). The issues are framed as follows:
1. Even though Ordinance 24 was found constitutional, may plaintiff be considered the prevailing party for purposes of damages and counsel fees?
2. In light of the principle that a low bidder may not recover money damages from a public body after successfully challenging the award of a contract, M.A. Stephen Const. Co. v. Borough of Rumson, 125 N.J. Super. 67, 74[, 308 A.2d 380] (App.Div.1973), is plaintiff otherwise entitled to compensatory damages under § 1983?
3. Is plaintiff entitled to an award of counsel fees under § 1988?
A short summary of the facts and a chronology of the events are necessary to place these issues in proper context.
Plaintiff submitted the low bid to the City for a project involving realignment of certain city streets. In accordance with the then controlling ordinances, the bid was sent to the City affirmative action officer for review, who found that plaintiff had failed to qualify under various provisions of the Plan. The City rejected
plaintiff's bid and the contract was awarded to another bidder. Plaintiff then filed suit and sought, among other relief, a preliminary injunction to preclude the City from executing the contract with the party to whom the bid was awarded. The request for restraints was denied, the contract was signed, and the project was completed.
Plaintiff withdrew its action against the successful bidder, but continued to pursue its claim against the City, arguing that the Plan, which was the basis upon which the City rejected plaintiff's bid, was unconstitutional in that it was a violation of equal protection and § 1983. After a period of several months, at the time the constitutionality issue was scheduled for argument, the City requested a ninety-day adjournment to allow it time to take corrective measures with regard to the challenged affirmative action plan. Counsel for the City acknowledged at that time that the City's Plan appeared to be in conflict with the United States Supreme Court's decision in Richmond v. Croson Co., 488 U.S. 469, 109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) which concluded that to use race or ethnic criteria as a means to remedy past discrimination, judicial, legislative or administrative findings of constitutional or statutory violations must first be made. Id., 488 U.S. at 497, 109 S. Ct. at 723, 102 L. Ed. 2d at 884. The City offered to suspend the Plan while it took action to revise it. An order was thereafter entered suspending the Plan and giving the City time to take action. Several months later the Plan was amended by Ordinance 24.
The issues are now before the court as outlined above. The first question is whether plaintiff may be considered a prevailing party.
An analysis of whether plaintiff is a prevailing party requires an examination of the complaint. African Council v. Hadge, 255 N.J. Super. 4, 9, 604 A.2d 604 (App.Div.1992). There must be a factual causal nexus between plaintiff's litigation and the relief ultimately achieved and it also must be shown that ...