STATE OF TEXAS v. UNITED STATES OF AMERICA et al
MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on June 18, 2014. (lcrmc3)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STATE OF TEXAS,
UNITED STATES OF AMERICA, and
ERIC H. HOLDER, JR., in his official
capacity as Attorney General of the
WENDY DAVIS, et al.,
Civil Action No. 11-1303 (RMC)
This matter presents a case study in how not to respond to a motion for attorney
fees and costs. At issue is whether defendant-intervenors, who prevailed in Voting Rights Act
litigation before a three-judge panel, may recoup attorney fees and costs even though the
Supreme Court vacated that opinion in light of the Supreme Court’s subsequent decision in a
different lawsuit that declared a section of the Voting Rights Act unconstitutional. A quick
search of the Federal Reporter reveals the complexity of this narrow question. Yet, rather than
engage the fee applicants, Plaintiff Texas basically ignores the arguments supporting an award of
fees and costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court’s
decision, expresses indignation at having to respond at all, and presumes that the motion for
attorney fees is so frivolous that Texas need not provide further briefing in opposition unless
requested. Such an opposition is insufficient in this jurisdiction. Circuit precedent and the Local
Rules of this Court provide that the failure to respond to an opposing party’s arguments results in
waiver as to the unaddressed contentions, and the Court finds that Texas’s “Advisory” presents
no opposition on the applicable law. Accordingly, the Court will award the requested fees and
Following the 2010 Census, Texas redrew its State and congressional voting
districts to account for its growing population and new congressional seats, see U.S. Const. art. I,
§ 2, cl. 3; U.S. Const. amend. XIV, § 2, and to comply with the principle of one-person, onevote, see Georgia v. Ashcroft, 539 U.S. 461, 488 n.2 (2003) (citing Reynolds v. Sims, 377 U.S.
533 (1964)). The new voting districts could not take immediate effect, however. At the time the
redistricting plans were enacted, the State fell within the coverage formula of Section 4(b) of the
Voting Rights Act of 1965 (VRA), 42 U.S.C. §§ 1973, et seq., and, therefore, was required under
Section 5 of the VRA to obtain approval, or “preclearance,” of its redistricting plans from the
Attorney General of the United States or a three-judge panel of this Court, see id. § 1973c(a).
Texas did not seek administrative preclearance but instead filed suit in this Court on July 19,
2011. See Compl. [Dkt. 1]. The lawsuit sought approval for redistricting plans the Texas
Legislature had drawn for the U.S. House of Representatives (Plan C185), the Texas House of
Representatives (Plan H283), the Texas Senate (Plan S148), and the Texas State Board of
Education. Texas sought a declaratory judgment that all Plans complied with Section 5 of the
VRA because they neither had “the purpose nor . . . effect of denying or abridging the right to
vote on account of race, color, or [language minority group].” 1 42 U.S.C. § 1973c(a).
In 1975, Congress extended the VRA to cover members of language minority groups. See 42
Properly convened as a three-judge panel, id.; 28 U.S.C. § 2284, this Court had
jurisdiction pursuant to 42 U.S.C. § 1973c and 28 U.S.C. §§ 1346(a)(2), 2201. The United States
opposed preclearance of Plans C185 and H283. In addition, seven parties intervened as
defendants, each of whom opposed preclearance of one or more of Texas’s redistricting Plans. 2
No party, however, objected to the plan for the Texas State Board of Education. Therefore, on
September 22, 2011, the Court entered judgment in favor of Texas on that Plan, permitting its
immediate implementation. See Sept. 22, 2011 Minute Order; see also Texas, 887 F. Supp. 2d at
After denying Texas’s motion for summary judgment and ordering expedited
discovery, the three-judge Court conducted a bench trial over a two-week period in January
2012. The United States and Defendant-Intervenors argued against preclearance, presenting
evidence at trial and submitting post-trial briefing. Texas, 887 F. Supp. 2d at 139. The
opposition to the Plans, however, was not uniform. For instance, the United States, the Texas
Latino Redistricting Task Force, and the Gonzales Intervenors all presented expert reports and
testimonies concerning retrogression. Id. at 141. Only the Davis Intervenors, Texas NAACP
Intervenors, the League of Urban Latin American Citizens, and the Texas Legislative Black
Caucus argued that Plan S148 should be denied preclearance due to the retrogressive manner in
U.S.C. § 1973b(f)(2); see also id. § 1973l(c)(3) (defining the terms “language minorities” and
“language minority groups”).
The parties intervened in their capacities as “individual voters, elected state representatives, or
civil rights advocacy groups.” Texas v. United States, 887 F. Supp. 2d 133, 138 n.2 (D.D.C.
2012), vacated and remanded, 133 S. Ct. 2885 (2013). Specifically, they were Texas State
senators and representatives from districts in the Fort Worth area (collectively, Davis
Intervenors); two legislative caucuses of the Texas House of Representatives (the Mexican
American Legislative Caucus and the Texas Legislative Black Caucus); a group of Hispanic and
African-American voters in Texas (collectively, Gonzales Intervenors); and three organizations
concerned about minority voting rights, redistricting, or voter registration (the Texas State
Conference of NAACP Branches, the League of United Latin American Citizens, and the Texas
Latino Redistricting Task Force). Id.
which the Texas Legislature had drawn State Senate District 10 (Fort Worth). 3 See id. at 162.
Texas presented its own expert testimony and argued vigorously for approval of all three Plans.
The upshot was a “voluminous trial record” that fleshed out the controversies. Id. at 139.
The three judges of this Court were not the only judicial officers wrestling with
redistricting Plans C185, H283, and S148. Several parties, including many of the DefendantIntervenors in the instant litigation, had instituted suit against Texas in the Western District of
Texas under Section 2 of the VRA, 42 U.S.C. § 1973(a). 4 Before a three-judge panel in the
Western District of Texas, those parties argued that Plans C185, H283, and S148 violated
Section 2 because all three Plans discriminated against minority voters by diluting their voting
strength in certain areas of Texas. Perry v. Perez, 132 S. Ct. 934, 940 (2012) (per curiam).
Although the three-judge panel in Texas withheld judgment until this Court resolved the
preclearance litigation, it adopted interim plans for the 2012 election because the redistricting
Plans had not been precleared and the State could not use its prior voting districts, now malapportioned because of population growth. See id. The Texas court imposed a set of interim
maps, which were later adjusted after the Supreme Court vacated them due to various errors not
pertinent here. See id. at 943-44.
On August 28, 2012, this Court denied Texas’s motion for declaratory judgment,
finding that Plans C185, S148, and H283 did not merit preclearance because Texas had not
carried its burden of showing that those Plans did “not have the purpose or effect of denying or
These Defendant-Intervenors also argued that Plan S148 was enacted with discriminatory
intent. Id. at 162.
Section 2 provides that “[n]o voting qualification or prerequisite to voting or standard, practice,
or procedure shall be imposed or applied by any State or political subdivision in a manner which
results in a denial or abridgement of the right of any citizen of the United States to vote on
account of race or color . . . .” 42 U.S.C. § 1973(a).
abridging the right to vote on account of race, color, or membership in a language minority group
under [S]ection 5 of [VRA].” See Texas, 887 F. Supp. 2d at 178. Specifically, the Court found
that Texas had failed to overcome evidence of the retrogressive effect of Plans C185 and H283
and evidence of discriminatory purpose in enacting Plan C185 and Senate District 10 in Plan
S148. Id. at 162, 178. Throughout its Opinion, this Court made clear that it was relying on the
evidence offered at trial by all parties, including Defendant-Intervenors.
On October 19, 2012, Texas appealed this Court’s decision to the Supreme Court.
Thereafter, between June 21 and 23, 2013, the Texas Legislature repealed and replaced Plans
C185, H283, and S148 with new maps. The Texas Legislature passed three separate statutes that
redrew the State’s voting districts in a manner that closely mirrored the second set of interim
plans ordered by the Perez Court. See Davis Mot. for Fees [Dkt. 256] at 10. The Governor of
Texas signed these new plans into law on June 26, 2013. Id. at 11.
On June 25, 2013, after Texas legislative action and one day before the Governor
signed the three new redistricting plans into law, the Supreme Court issued Shelby County v.
Holder, 133 S. Ct. 2612 (2013). Shelby County involved a constitutional challenge to Section 4
of the VRA. The Supreme Court held that because the coverage formula in Section 4(b) was
based on stale data and distinguished among the States in an unconstitutional manner, it “can no
longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at 2631. Then, on
June 27, 2013, one day after Texas replaced Plans C185, S148, and H283, the Supreme Court
vacated and remanded this Court’s opinion that had denied preclearance to Texas. The Davis
Intervenors had immediately moved in the Supreme Court for dismissal of Texas’s appeal as
moot in light of the formal adoption of new voting plans by the Texas Legislature, and the
Supreme Court instructed this Court to consider both Shelby County and the Davis Intervenors’
“suggestion of mootness” on remand. Texas, 133 S. Ct. at 2885.
On July 3, 2013, Texas moved to dismiss this lawsuit as moot in light of Shelby
County. See Pl. Mot. to Dismiss [Dkt. 239]. All Defendant-Intervenors argued against the
motion, and several asked for leave to file a counterclaim against Texas under Section 3(c) of the
VRA, 42 U.S.C. § 1973a(c). The Court found that both Shelby County and Texas’s enactment of
superseding redistricting plans mooted the controversy. See Dec. 3, 2013 Mem. & Order [Dkt.
255] at 4. It also noted that dismissal of the suit as moot would not preclude DefendantIntervenors from seeking attorney fees. See id. Accordingly, the Court granted Texas’s motion
to dismiss and closed the case. On January 22, 2014, the three-judge Court dissolved itself and
remanded the matter to this single judge for further proceedings. See Jan. 22, 2014 Order [Dkt.
The Davis Intervenors, Gonzales Intervenors, and Texas State Conference of
NAACP Branches (collectively, Fee Applicants) now move for attorney fees and costs. 5 They
contend that they are prevailing parties and are entitled to fees and costs under the VRA. The
Davis Intervenors seek a total reimbursement of $466,680.36, see Davis Mot. for Fees at 2, the
Gonzales Intervenors seek a total reimbursement of $597,715.60, see Gonzales Mot. for Fees
[Dkt. 257] at 2, and the Texas State Conference of NAACP Branches seeks a total
reimbursement of $32,374.05, see Texas State Conference of NAACP Branches Mot. for Fees
[Dkt. 258] at 1.
Texas has not filed a brief in opposition to the pending motions. Instead, Texas
filed a three-page “Advisory” that begins and ends with Shelby County. See Advisory [Dkt.
259]. Texas writes that, in light of Shelby County, the State was wrongly subjected to
Fee Applicants timely filed their motions for attorney fees pursuant to the Federal Rules of
Civil Procedure. See Fed. R. Civ. P. 54(d)(2)(B)(i).
preclearance in the first place. As a result, Texas contends, the participation of DefendantIntervenors in this VRA litigation only served to “aggravat[e] the unconstitutional burden of
preclearance and delay [Texas’s] reapportionment efforts following the 2010 Census.” Id. at 2.
Texas adds that “[t]he only basis upon which the Intervenors could conceivably have claimed
prevailing-party status” was the three-judge Court’s denial of preclearance, which the Supreme
Court vacated on appeal. Id. Confident in its Advisory, Texas makes no additional arguments
and asserts an intention to say no more unless required to do so. Id. at 3 (“Shelby County
requires immediate denial of all motions for fees and costs, and the State does not intend to
respond unless requested to do so by the Court.”).
The merits of the instant litigation were tried to a three-judge Court under the
VRA, and that Court fulfilled its mandate when it entered its judgment. Section 5 of the VRA
requires matters to be “heard and determined by a court of three judges” only to the extent
required by 28 U.S.C. § 2284, see 42 U.S.C. § 1973c(a). Section 2284, in turn, permits “[a]
single judge . . . [to] conduct all proceedings except the trial, and enter all orders permitted by the
rules of civil procedure except as [otherwise] provided . . . .” 28 U.S.C. § 2284(b)(3). Here, the
three-judge panel fulfilled its statutory purpose. The question of fees and costs is an ancillary
matter and is properly resolved by the district court judge to whom the case was assigned
initially. See, e.g., Pub. Serv. Comm’n of Mo. v. Brashear Freight Lines, Inc., 312 U.S. 621, 625
(1941) (noting that a single district judge, rather than a three-judge panel, should have resolved a
motion for damages that was filed after the three-judge panel had ruled on an injunction
application for which the three-judge panel had been convened); Hamilton v. Nakai, 453 F.2d
152, 161 (9th Cir. 1971) (holding that a single judge could decide an ancillary issue because the
three-judge court had issued its judgment and therefore “had fulfilled the statutory purpose for
which the two additional judges had been called”); Allen v. Cnty. Sch. Bd. of Prince Edward
Cnty., Va., 249 F.2d 462, 464 (4th Cir. 1957) (finding post-judgment motion requesting deadline
for compliance with three-judge court’s desegregation order was properly resolved by single
district court judge).
Turning to the first principles of attorney fee awards, parties in the United States
ordinarily bear their own attorney fees regardless of the outcome of the litigation. Fresh Kist
Produce, LLC v. Choi Corp., 362 F. Supp. 2d 118, 125 (D.D.C. 2005) (citing Buckhannon Bd. &
Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 602-03 (2001),
superseded in part by statute, Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat.
2524 (codified at 5 U.S.C. § 552(a)(4)(E) (2009))). There are exceptions, however, to this socalled “American Rule.” For instance, the American Rule does not apply where there is an
explicit statutory basis for awarding fees. Id. (citing Alyeska Pipeline Serv. Co. v. The
Wilderness Soc’y, 421 U.S. 240, 257 (1975), superseded by statute on other grounds, Civil
Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 106-274, §4(d), 114 Stat. 803, 804
(codified at 42 U.S.C. § 1988(b) (2000))).
If a party establishes that it is entitled to attorney fees, then the question becomes
whether the fees sought are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983),
abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 795-805 (2002). The
standard metric for determining the reasonableness of a fee request is the “lodestar method.” 6
As discussed infra, such a calculation “produces an award that roughly approximates the fee that
The “lodestar” approach to fee awards was established by the Supreme Court in Hensley, and is
the approach followed by the federal courts in most fee award disputes. See Gisbrecht, 535 U.S.
the prevailing attorney would have received if he or she had been representing a paying client
who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 551 (2010).
A. Fee Applicants’ Entitlement to Fees and Costs
Fee Applicants contend that statutory fee shifting provisions apply here.
Specifically, they seek attorney fees under § 1973l(e) of the VRA, 42 U.S.C. § 1973l(e), and
subsection (b) of 42 U.S.C. § 1988. Both provisions contain similar language and identical
legislative purposes. See Donnell v. United States, 682 F.2d 240, 245 n.7 (D.C. Cir. 1982). The
former states that “[i]n any action or proceeding to enforce the voting guarantees of the
fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee, reasonable expert fees, and other
reasonable litigation expenses as part of the costs,” 42 U.S.C. § 1973l(e), while the latter permits
a court, “in its discretion, . . . [to] allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs,” 42 U.S.C. § 1988(b). Both provisions are
designed to “encourag[e] private litigants to act as ‘private attorneys general’ in seeking to
vindicate the civil rights laws.” Donnell, 682 F.2d at 245. As a result, the two provisions are
construed alike. Id. at 245 n.7 (citing Riddell v. Nat’l Democratic Party, 624 F.2d 539, 543 (5th
Cir. 1980)); see also Buckhannon, 532 U.S. at 603 n.4 (recognizing that § 1973l(e) and § 1988(b)
have been interpreted in a consistent manner).
Requests for attorney fees pursuant to § 1973l(e) and § 1988(b) generally
implicate two questions of law. The first is whether the party seeking recovery of attorney fees
is a prevailing party. If so, then a fee award ordinarily should be granted. See, e.g., Blanchard v.
Bergeron, 489 U.S. 87, 89 n.1 (1989) (observing that a party that prevails in § 1988 litigation
“ordinarily” is entitled to attorney fees (internal quotations and citation omitted)); Donnell, 682
F.2d at 245 (“[T]he legislative history [of § 1973l(e)] makes clear that a prevailing party usually
should recover fees.”). The second is whether a court should exercise its discretion not to award
attorney fees because there are “special circumstances [that] would render such an award unjust.”
Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968).
1. Prevailing Party Precedent
The phrase “prevailing party” is a legal term of art, Buckhannon, 532 U.S. at 603,
which has been addressed by the Supreme Court in multiple decisions. See, e.g., Tex. State
Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) (“A prevailing party must
be one who has succeeded on any significant claim affording it some of the relief sought, either
pendent lite or at the conclusion of the litigation.”); Hewitt v. Helms, 482 U.S. 755, 760 (1987)
(“[P]laintiff [must] receive at least some relief on the merits of his claim before he can be said to
prevail.”). The Supreme Court most recently grappled with the concept in Buckhannon. There,
interpreting the fee-shifting provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C.
§ 3613(c)(2), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205, 7 the Supreme
Court explained that a prevailing party is “one who has been awarded some relief by the court,”
Buckhannon, 532 U.S. at 603, resulting in a “judicially sanctioned change in the legal
relationship of the parties,” id. at 605.
Buckhannon excluded from its definition instances in which the objective of a
lawsuit is achieved because a defendant voluntarily changes its conduct. Terming it the “catalyst
The fee-shifting provisions of the Fair Housing Amendment Act and the Americans with
Disabilities Act are similar to 42 U.S.C. § 1973l(e) and 42 U.S.C. § 1988(b). The Fair Housing
Amendments Act provides that “the court, in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee and costs”, 42 U.S.C. § 3613(c)(2), while the Americans with
Disabilities Act states that “the court . . . , in its discretion, may allow the prevailing party . . . a
reasonable attorney’s fee, including litigation expenses and costs,” 42 U.S.C. § 12205.
theory” of fees recovery, id. at 601, the Supreme Court reasoned that such a basis for recovery is
not connected to the clear meaning of “prevailing party,” id. at 605. Neither the legislative
history of similar fee-shifting provisions, such as the Civil Rights Attorney’s Fee Awards Act, id.
at 607, nor the Court’s precedents supported a “holding that the term ‘prevailing party’
authorizes an award of attorney’s fees without a corresponding alteration in the legal relationship
of the parties,” id. at 605. Even more troublesome to the Supreme Court was the fact that the
catalyst theory permits litigants to recover attorney fees for “nonfrivolous but nonetheless
potentially meritless lawsuit[s].” Id. at 606. Not only are such recoveries without “the necessary
judicial imprimatur,” id. at 605, but they discourage voluntary changes in conduct, id. at 608.
Accordingly, the Supreme Court held that voluntary changes in conduct disassociated from
judicial action are similar to a “reversal of a directed verdict,” a finding of constitutional
infirmity “unaccompanied by judicial relief,” and other nonjudicial modifications of actual
conditions, none of which permits recovery of attorney fees. 8 Id. at 605-06 (internal quotations
and citations omitted).
Since Buckhannon, the D.C. Circuit has adopted a three-part test for adjudicating
prevailing-party status. Prevailing-party status turns on whether there is “(1) . . . a court-ordered
change in the legal relationship of the parties; (2) [a] judgment . . . in favor of the party seeking
the fees; and (3) [a] judicial pronouncement . . . accompanied by judicial relief.” Green Aviation
Mgmt. Co. v. FAA, 676 F.3d 200, 203 (D.C. Cir. 2012) (internal quotation marks and citation
omitted). Markedly, only the latter two prongs are relevant when a defendant is the party
Through the Open Government Act of 2007, Congress superseded Buckhannon and reinstated
the catalyst theory of attorney fee recovery only for fee awards under the Freedom of
Information Act, 5 U.S.C. § 552. See Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521, 525 (D.C. Cir. 2011).
seeking attorney fees. 9 Id. at 204.
Buckhannon expressly recognized only two appropriate bases for awarding
attorney fees––judgments on the merits and settlements enforced through consent decrees.
Buckhannon, 532 U.S. at 605 (“We have only awarded attorney’s fees where the plaintiff has
received a judgment on the merits, or obtained a court-ordered consent decree.” (internal
citations omitted)). Prevailing-party status in this jurisdiction, however, is not so limited. Under
the D.C. Circuit’s construction of Buckhannon, a litigant in this jurisdiction need only establish
that s/he received “some form of judicial relief, not necessarily a court-ordered consent decree or
a judgment on the merits.” Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C. Cir. 2010).
The D.C. Circuit has recognized that, under certain circumstances, prevailing-party status may
result from a favorable jurisdictional ruling, a grant of preliminary injunction, or even a
judicially-sanctioned stipulation. Id. (citing with approval District of Columbia v. Jeppsen ex
rel. Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008); Select Milk Producers, Inc. v. Johanns, 400
F.3d 939, 945 (D.C. Cir. 2005); Carbonell v. INS, 429 F.3d 894, 895-96, 899 (9th Cir. 2005)).
2. Fee Applicants’ Arguments
Although each Fee Applicant moves separately for attorney fees, their arguments
In Oil, Chemical, & Atomic Workers International Union v. Department of Energy, 288 F.3d
452 (D.C. Cir. 2002), superseded by statute on other grounds, Open Government Act of 2007,
Pub. L. No. 110-175, 121 Stat. 2524, as recognized in Summers v. Department of Justice, 569
F.3d 500, 503 (D.C. Cir. 2009), the D.C. Circuit ruled that when interpreting a fee-shifting
provision courts should give the phrase “prevailing party” the same construction as it does in
other fee-shifting provisions “unless there is some good reason for doing otherwise,” id. at 455.
Overcoming this presumption is difficult. Green Aviation, 676 F.3d at 202 (explaining that this
Circuit “has joined other circuits in acknowledging that the burden of establishing good reason
not to apply Buckhannon is not easily met” (internal alterations, citation, and quotations
omitted)). Neither Texas nor the Fee Applicants argue that Buckhannon should not control the
meaning of “prevailing party” in 42 U.S.C. § 1973l(e) or 42 U.S.C. § 1988(b).
for prevailing-party status largely overlap and can be summarized. 10 Fee Applicants state that
they joined the litigation to oppose preclearance for Plans C185, H283, and/or S148. This Court
first denied preclearance to Texas on summary judgment, with the result that the District Court in
the Western District of Texas imposed interim maps that re-drew some voting districts.
Following a trial before this Court at which all parties presented demonstrative evidence, expert
reports, and testimony, the Court found that Plans C185, H283, and S148 violated the VRA. It,
therefore, denied preclearance. Fee Applicants argue that this result was enshrined into law in
June 2013, when Texas repealed Plans C185, H283, and S148 and enacted new redistricting
plans that were substantially similar to the interim maps drawn by the three-judge panel in Texas.
Because Texas never used Plans C185, H283, or S148 for any actual voting (primary or general
election) and all Plans were rejected by the Court and replaced by Texas, Fee Applicants contend
that they achieved not just some judicial relief, but rather, all of the relief that they sought.
Outraged that Fee Applicants would dare to request fees, Texas responds with its
Advisory. Texas posits that the three-judge Court’s denial of preclearance is “[t]he only basis
upon which the intervenors could conceivably . . . claim prevailing-party status,” Advisory at 2,
but that the decision does not support a fee award because it “was vacated on appeal,” id. Texas
Unlike the Davis Intervenors and the Texas State Conference of NAACP Branches, the
Gonzales Intervenors rely primarily on Commissioners Court of Medina County, Texas v. United
States, 683 F.2d 435 (D.C. Cir. 1982), in arguing their prevailing-party status. The Gonzales
Intervenors contend that a judgment denying preclearance gives rise to a presumption that any
defendants who intervened are prevailing parties. Further, the Gonzales Intervenors argue that,
even without such a presumption, they fit within Medina County’s two-prong test for
determining prevailing-party status. Medina County, however, is a “catalyst theory” fee award
case that predates Buckhannon. See 683 F.2d at 440 (describing the applicable test for prevailing
party status as whether “the party . . . substantially received the relief sought, and . . . [whether]
the lawsuit . . . [was] a catalytic, necessary, or substantial factor in attaining the relief”
(emphasis added)). Although neither the Supreme Court nor the D.C. Circuit has overruled
Medina County explicitly, its continuing validity in light of Buckhannon is uncertain, and here,
immaterial to the Court’s determination of Fee Applicants’ prevailing-party status.
asserts that Shelby County must be given full retroactive effect and this Court has no choice but
to deny Fee Applicants’ motions for attorney fees. Id. at 2-3 (citing Harper v. Va. Dep’t of
Taxation, 509 U.S. 86, 97 (1993); Landsgraf v. USI Film Prods., 511 U.S. 244, 279 n.32 (1994)).
3. Fee Applicants Are Prevailing Parties
The Advisory filed by Texas has narrowed the dispute greatly. Texas rests
entirely on Shelby County. Its sole contention is that the Supreme Court, as a matter of fact and
law, erased the three-judge Court’s opinion, and, consequently, Fee Applicants’ successes before
that Court. In essence, Texas believes that Shelby County establishes that the entirety of the
preclearance process, including this Court’s denial of preclearance, was a constitutional “affront”
and nullity. In short, Texas points to Shelby County and declares checkmate. Texas does not
address Defendant-Intervenors’ argument that they achieved the relief they sought because Texas
discarded the challenged Plans and adopted different redistricting plans.
In fixating on Shelby County, Texas blinds itself to the procedures of this Court.
The Local Rules of the Court provide that:
Within 14 days of the date of service or at such other time as the
Court may direct, an opposing party shall serve a memorandum of
points and authorities in opposition to the motion. If such a
memorandum is not filed within the prescribed time, the court may
treat the motion as conceded.
D.D.C. Local Civil Rule 7(b). This Rule “is a docket-management tool that facilitates efficient
and effective resolution of motions by joining of issues.” Fox v. Am. Airlines, Inc., 389 F.3d
1291, 1294 (D.C. Cir. 2004). It applies not only to instances where a litigant entirely fails to
oppose a motion but also where a party files an opposition that addresses only some of the
arguments raised in the underlying motion. In the latter instance, it is well-established that
courts may deem the unaddressed arguments as conceded. See Hopkins v. Women’s Div., Gen.
Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C. 2002) (“It is well understood in this
Circuit that when a [non-movant] files an opposition to a motion . . . addressing only certain
arguments raised by the [movant], a court may treat those arguments that the [non-movant] failed
to address as conceded.” (citing FDIC v. Bender, 127 F.3d 58, 67-68 (D.C. Cir. 1997))); CSX
Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996); see also
Twelve John Does v. District of Columbia, 117 F.3d 571, 577 (D.C. Cir. 1997) (explaining that
the Circuit “honors . . . [a district court’s] enforcement of the rule” that “absence of a response
[is] . . . a basis for treating the motion as conceded”).
Texas does not dispute that Fee Applicants were prevailing parties prior to the
Supreme Court’s issuance of Shelby County and subsequent vacatur and remand of this Court’s
opinion denying preclearance. Notably, this Circuit has found that parties who intervene as
defendants in VRA litigation are eligible for fee awards, 11 see Medina Cnty., 683 F.2d at 440;
Donnell, 682 F.2d at 246, and Fee Applicants contend that the three-judge Court’s denial of
preclearance rendered them prevailing parties under Buckhannon, as interpreted by the D.C.
Circuit. Texas makes no argument whatsoever that Shelby County upended the eligibility of Fee
Judge John D. Bates recently denied Shelby County’s motion for attorney fees, finding that its
(ultimately successful) lawsuit was at odds with the policy rationale of the VRA’s fee-shifting
provision. Shelby Cnty. v. Holder (Shelby Cnty. II), Civ. No. 10-651, 2014 WL 2200898, at *10
(D.D.C. May 28, 2014). Assuming that Shelby County’s lawsuit was the “sort of action or
proceeding” for which § 1973l(e) permits attorney fee awards, id. (internal quotations omitted),
Judge Bates determined that the County was not entitled to fees under the “demanding . . .
standard” set forth in Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978), Shelby Cnty.
II, 2014 WL 2200898, at *10. Judge Bates opined that “the purpose of section 1973l(e) is to
encourage private attorneys general to bring lawsuits vindicating individual voting rights,” id.,
whereas Shelby County’s suit sought to undermine VRA rights, id. at *16 (citing Christiansburg,
434 U.S. at 418).
Judge Bates’ opinion is inapposite to the facts of this case. Fee Applicants intervened, in the
manner of private attorneys general, to protect core rights established under the VRA prior to the
Supreme Court’s issuance of Shelby County. As the analysis in the text demonstrates, Fee
Applicants were successful in preventing Texas’s use of redistricting Plans C185, H283, and
S148 and the State adopted three new redistricting plans for elections subsequent to June 2013.
Applicants for fee awards, the applicability of Buckhannon, or the prevailing-party status of Fee
Applicants at the time the Court denied preclearance to Texas and thereafter, when Texas
enacted new redistricting maps. Thus, the Court finds that Texas has waived any argument as to
Having conceded that Fee Applicants were prevailing parties prior to Shelby
County, Texas’s only argument against an award of fees and costs here is that Shelby County
effectively stripped Fee Applicants of their victory. Texas’s opposition, however, overlooks
National Black Police Association v. District of Columbia Board of Elections & Ethics, 168 F.3d
525 (D.C. Cir. 1999) and Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986). In National Black
Police Association, various plaintiffs sought an injunction against campaign contribution limits
for certain local elections. 168 F.3d at 526-27. The district court enjoined the initiative as
violative of the First Amendment, and fifty-two days later, the D.C. City Council repealed the
challenged contribution limits. Id. at 527. On appeal, the D.C. Circuit deemed the matter moot
in light of the Council’s repeal and vacated the district court’s judgment. The district court then
awarded attorney fees to plaintiffs, holding that “despite the eventual mootness of the case . . . .
the injunction changed the legal relationship of the parties, and contributors were able to make
substantial contributions that otherwise would not have been legal.” Id. The D.C. Circuit
agreed. “The fact that the case was moot by the time of the appeal [did] not alter the fact that the
injunction altered the legal relationship between the parties when it was issued . . . .” Id. at 528.
It was of no moment to the D.C. Circuit that the plaintiffs would have realized their goal fiftytwo days later when the Council repealed the initiative. “The plaintiffs secured a real-world
vindication of their First Amendment rights” regardless of subsequent events. Id. Accordingly,
the “district court properly found that the plaintiffs were prevailing parties because at the time
judgment was entered, the injunction altered the legal relationship between the parties.” Id. at
Similarly, in Grano, plaintiffs obtained an injunction that delayed the demolition
of an historical site pending a public referendum. 783 F.2d at 1107-08. The D.C. Circuit
affirmed the district court’s finding that the plaintiffs were prevailing parties despite the fact that
the vote to preserve the site was invalidated. Id. at 1109. The Circuit reasoned that the public
referendum would have had no chance to preserve the building at all if the building were razed
before the election. In other words, the Grano plaintiffs “faced two hurdles[:] [t]hey successfully
surmounted the first by holding off the demolition until the election . . . . [and] [a]lthough their
goal of ensuring that the result of the election would have legal effect was subsequently blocked
in another court, they nonetheless succeeded in the aspect of their claims that brought them into
federal court . . . .” Id. Significantly, the D.C. Circuit subsequently has observed that “[t]he
injunction [in Grano] produced a lasting change in the parties’ legal circumstances and gave the
plaintiffs the precise relief that they had sought.” Thomas v. Nat’l Sci. Found., 330 F.3d 486,
493 (D.C. Cir. 2003).
Here, Texas does not dispute that this Court’s denial of preclearance altered the
legal relationship between it and Fee Applicants. Nor does Texas dispute that on June 26, 2013,
it repealed the very voting maps for which it had sought preclearance and replaced them with
redistricting maps that were substantially similar to the voting districts ordered by the District
Court in Texas. Although the Supreme Court ultimately vacated this Court’s opinion, neither
Shelby County nor the vacatur erased the real-world vindication that Fee Applicants had
achieved. In line with this Circuit’s precedents and those in other courts of appeals, the Court
finds that Defendant-Intervenors did not lose prevailing-party status due to subsequent mootness.
See Thomas, 330 F.3d at 493; Nat’l Black Police Ass’n, 168 F.3d at 528; Grano, 783 F.2d at
1108-09; see also Thomas v. Bryant, 614 F.3d 1288, 1294 (11th Cir. 2010) (“[W]hen plaintiffs
clearly succeeded in obtaining the relief sought before the district court and an intervening event
rendered the case moot on appeal, plaintiffs are still ‘prevailing parties’ for the purposes of
attorney’s fees for the district court litigation.” (quoting Diffenderfer v. Gomez-Colon, 587 F.3d
445, 454 (1st Cir. 2009) (internal quotation marks omitted))); Palmer v. City of Chicago, 806
F.2d 1316, 1321 (7th Cir. 1986) (assuming without deciding that it is possible for a party to
“win” even though “after some relief has been obtained[,] the case becomes moot––is in effect
interrupted before it can reach its normal conclusion (unless the [prevailing party] caused it to
become moot)”); cf. UFO Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1197 (9th Cir. 2007)
(“[W]hen ‘a party . . . achieves the objective of its suit by means of an injunction issued by the
district court[, it] is a prevailing party in that court, notwithstanding the fact that the case
becomes moot, through no acquiescence by the defendant, while the order is on appeal.’”
(quoting Dahlem v. Bd. of Educ. of Denver Pub. Sch., 901 F.2d 1508, 1512 (10th Cir. 1990))).
This result is not inconsistent with the analysis in Lewis v. Continental Bank
Corp., 494 U.S. 472 (1990). Lewis involved two Florida statutes that prohibited an out-of-state
holding company from operating an industrial savings bank in Florida. Continental Bank
challenged the statutes as unconstitutional under the Commerce Clause, U.S. Const., Art. I, § 8,
cl. 3, and sought an injunction to order the State Comptroller to process its application for an
industrial savings bank. Lewis, 494 U.S. at 475. The district court granted the relief requested,
and Florida then amended the statutes, which materially altered the legal landscape. Id. Florida
moved to amend the district court judgment on the grounds of mootness and Continental Bank
moved for attorney fees under 42 U.S.C. § 1988. The district court denied both motions. Id.
On appeal, the Eleventh Circuit found that the case was not moot, affirmed the
lower court decision on different grounds, and remanded for further analysis on the fee petition.
Id. at 476. Shortly before the Eleventh Circuit decision issued, however, Congress adopted the
Competitive Equality Amendments Act of 1987, Pub. L. No. 100-86, 101 Stat. 552, which
expanded the definition of “bank” and distinctly mooted the Continental Bank lawsuit. Lewis,
494 U.S. at 476. Florida petitioned the Eleventh Circuit for rehearing, but the Circuit denied the
request, awarded attorney fees, and remanded to the district court to calculate the award. Id. at
The Supreme Court granted certiorari to Florida and held that the federal
legislation had mooted the case. Id. at 477-80. It found that Continental Bank no longer had any
“stake in the outcome” because of changes in the law. Id. at 478. As to any fee recovery, the
Supreme Court observed that “[s]ince the judgment below [was] vacated on the basis of an event
that mooted the controversy before the Court of Appeals’ judgment issued, Continental was not,
at that stage, a ‘prevailing party’ as it must be to recover fees under § 1988.” Id. at 483
(emphasis added). It added, “[w]hether Continental [could] be deemed a ‘prevailing party’ in the
District Court, even though its judgment was mooted after being rendered but before the losing
party could challenge its validity on appeal, is a question of some difficultly that . . . . [w]e
decline to resolve . . . . as well as the related question whether . . . fees are available in a
Commerce Clause challenge.” Id. (citation omitted).
As the Ninth Circuit has since observed, Lewis “did not hold that a party
automatically loses its prevailing party status when the appeal becomes moot before a Court of
Appeals reaches final judgment.” UFO Chuting, 508 F.3d at 1197 n.8. “Rather,
[it] . . . reaffirmed established case law requiring a prevailing party to obtain a direct and
substantial benefit.” Id. Fee Applicants obtained a direct and substantial benefit as well:
redistricting Plans C185, H283, and S148 were never implemented; Texas repealed the
challenged Plans and adopted new plans; and the Governor formally executed the legislation
replacing the Plans one day before the Supreme Court vacated and remanded this Court’s denial
of preclearance. Given this timing of events, Shelby County did not strip Defendant-Intervenors
of their rights to seek fees. This conclusion is consistent with Lewis and follows the law of the
D.C. Circuit and other courts of appeals that have found that subsequent mootness does not
necessarily obviate a litigant’s prevailing-party status.
4. Absence of Special Circumstances
Having found Fee Applicants are prevailing parties, the Court turns to whether
special circumstances would render an award unjust. This question requires an evaluation of
several factors. One consideration is “whether the net result is [such] . . . that it would be
stretching the imagination to consider the result a ‘victory’ in the sense of vindicating the rights
of the fee claimants.” Medina Cnty., 683 F.2d at 442-43. “If the victory can fairly be said to be
only a pyrrhic one, then an award of fees would presumably be inappropriate.” Id. at 443. A
related consideration is the impact that the party seeking attorney fees had on the litigation.
Where fee applicants are intervenors, a court considers whether they timely intervened, 12
whether their participation was necessary to protect their interests and further the policies
embodied in the relevant statutory scheme, Miller, 706 F.2d at 343, and whether they had an
“independent impact on the particular outcome of the case,” Medina Cnty., 683 F.2d at 443.
The D.C. Circuit has noted that the analysis of the contributions of an intervenor, for purposes
of attorney fees, is akin to the analysis that is conducted when intervention is first sought.
Accordingly, “the District Court should not reevaluate its decision on this issue unless new
evidence has arisen.” Miller v. Staats, 706 F.2d 336, 343 n.40 (D.C. Cir. 1983) (citing Medina
Cnty., 683 F.2d at 443).
The “special circumstances” exception to an award of fees is a gloss on § 1973l(e)
and § 1988. That is, the exception is “a judicially created concept, not mentioned in any of the
fee award statutes.” Maloney v. City of Marietta, 822 F.2d 1023, 1027 (11th Cir. 1987). As a
result, the exception is “narrowly construed so as not to interfere with the congressional purpose
in passing [fee-shifting] statutes.” Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985) (en
banc), abrogated on other grounds by Tex. State Teachers Ass’n, 489 U.S. 782.
Fee Applicants set forth in detail the efforts that they undertook to oppose Plans
C185, H283, and S148. They explain the necessity of their intervention, describe the resources
that they expended at every stage in the proceedings, and recount the witnesses and evidence that
they presented at trial. Texas makes no effort to rebut Fee Applicants’ facts or arguments.
Accordingly, the Court finds no special circumstances and that Texas concedes there are no
special circumstances that would render an award of attorney fees to Fee Applicants unjust. 13
See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F. Supp. 2d at 178.
B. Reasonableness of Defendant-Intervenors’ Request
In this Circuit, “[t]he usual method of calculating reasonable attorney’s fees is to
multiply the hours reasonably expended in the litigation by a reasonable hourly fee, producing
the ‘lodestar’ amount.” Bd. of Trs. of Hotel & Rest. Emps. Local 25 v. JPR, Inc., 136 F.3d 794,
801 (D.C. Cir. 1998). A fee applicant bears the burden of demonstrating that the claimed rate
and number of hours are reasonable. Blum v. Stenson, 465 U.S. 886, 897 (1984); Covington v.
Fee Applicants also argue an alternate theory of prevailing-party status, i.e., because this threejudge Court denied summary judgment to Texas, the Perez Court imposed interim redistricting
maps and Fee Applicants may recover fees and costs in this Court. Fee Applicants reason that
“[n]othing in Buckhannon requires that the judicial relief relied upon for prevailing party status
be received in the same case in which fees are sought . . . .” Davis Mot. for Fees at 21. In light
of Fee Applicants’ significant participation in this case and Texas’s concessions, the Court has
no need to rule on this argument.
District of Columbia, 57 F.3d 1101, 1107 (D.C. Cir. 1995).
Fee applications must “include contemporaneous time records of hours worked
and rates claimed, plus a detailed description of the subject matter of the work with supporting
documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989). A fee applicant may
satisfy its burden of demonstrating that its time was reasonably spent by submitting “‘sufficiently
detailed information about the hours logged and the work done’ that permits the district court to
‘make an independent determination whether or not the hours claimed are justified.’” Cobell v.
Norton, 231 F. Supp. 2d 295, 305 (D.D.C. 2002) (quoting Nat’l Ass’n of Concerned Veterans v.
Sec’y of Def., 675 F.2d 1319, 1327 (D.C. Cir. 1982)). The applicant need not, however, “present
the exact number of minutes spent nor the precise activity to which each hour was devoted nor
the specific attainments of each attorney.” Id. at 306. Billing descriptions can be read in
context, with clarification coming from surrounding billing entries as well as the docket. Heard
v. District of Columbia, Civ. No. 02–296, 2006 WL 2568013, at *14-15 (D.D.C. Sept. 5, 2006).
The Court need not tarry long on the reasonableness of the fees sought because
Texas has presented no argument contesting any aspect of them. Fee Applicants have submitted
sufficiently detailed information about the hours their attorneys spent working on this matter as
well as the specific work performed. See Davis Mot. for Fees at 24-35; Id., Exs. A-L; Gonzales
Mot. for Fees at 11-15; Id., Decl. of John Devaney [Dkt. 257-3], Exs. A-C; Id., Decl. of Renea
Hicks [Dkt. 257-7], Ex. A; Texas State Conference of NAACP Branches Mot. for Fees at 2-3;
Id., Ex [Dkt. 258-1]. Further, they have adequately explained the hourly rates of their attorneys.
Because Texas makes no argument whatsoever in opposition, the Court finds that Texas
concedes the reasonableness of the attorney fees that Fee Applicants seek. See CSX Transp.,
Inc., 82 F.3d at 482-83; Hopkins, 238 F. Supp. 2d at 178.
The Court likewise easily finds that Fee Applicants are entitled to recover the
litigation costs that they request. See Davis Mot. for Fees at 36-37; Id., Ex. M; Gonzales Mot.
for Fees at 15-16; Texas State Conference of NAACP Branches Mot. for Fees at 3. Section
1973l(e) of the VRA explicitly permits prevailing parties to recoup costs. See 42 U.S.C.
§ 1973l(e) (“In any action or proceeding to enforce the voting guarantees of the fourteenth or
fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the
United States, . . . reasonable expert fees and other reasonable litigation expenses as part of the
costs.”). Texas mounts no challenge to the categories or amounts for which DefendantIntervenors seek recovery. Nor does Texas argue that such an award would be unreasonable.
Accordingly, the Court finds that Texas also concedes the reasonableness of the costs and
experts fees that Fee Applicants seek. See CSX Transp., Inc., 82 F.3d at 482-83; Hopkins, 238 F.
Supp. 2d at 178.
The Advisory submitted by the State of Texas fails to recognize that the limited
holding of Shelby County did not resolve the issues here. The Advisory entirely ignores the legal
arguments raised by Fee Applicants concerning their rights as prevailing parties. Confident in its
position, Texas informs the Court that it will not further “respond unless requested to do so.”
Advisory at 3. The onus, however, is not on the Court to request opposition from a sophisticated
party before rendering its decision. Texas has had every chance to oppose the fees and costs that
Fee Applicants seek since the applications. It instead opted to file a three-page Advisory that
ignored every argument of Fee Applicants except the applicability of Shelby County.
In accord with the precedents of this Circuit and others, the Court finds that Fee
Applicants are prevailing parties before this Court and eligible to recover attorney fees and costs.
The Court further finds that the fees and costs they seek are uncontested and reasonable. The
Court will award $466,680.36 to the Davis Intervenors, $597,715.60 to the Gonzales Intervenors,
and $32,374.05 to the Texas State Conference of NAACP Branches. A memorializing Order
accompanies this Opinion.
ROSEMARY M. COLLYER
United States District Judge
Date: June 18, 2014
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