Memphis A. Phillip Randolph Institute et al v. Hargett et al

Filing 166

REPORT AND RECOMMENDATION: For the foregoing reasons, the undersigned recommends that Plaintiffs' Motion (Docket No. 158 ) be GRANTED. Signed by Magistrate Judge Jeffery S. Frensley on 1/10/2022. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

MEMPHIS A. PHILLIP RANDOLPH
INSTITUTE, et al.,
Plaintiffs,
v.
TRE HARGETT, et al.,
Defendants.

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Case No. 3:20-cv-00374
Judge Richardson/Frensley

REPORT AND RECOMMENDATION
Memphis A. Phillip Randolph Institute, The Equity Alliance, Free Hearts, The Memphis
and West Tennessee AFL-CIO Central Labor Council, The Tennessee State Conference of the
NAACP, and Sekou Franklin (“Plaintiffs”) have filed a Motion for Attorneys’ Fees. Docket No.
158. Plaintiffs have also filed a Supporting Memorandum and several supporting documents.
Docket Nos. 159, 159-1 through 159-5. Tre Hargett, in his official capacity as Secretary of State
of the State of Tennessee, Mark Goins, in his official capacity as Coordinator of Elections for the
State of Tennessee, and Amy Weirich, in her official capacity as the District Attorney General
for Shelby County, Tennessee (“Defendants”) have filed a Response in Opposition and a
supporting document. Docket Nos. 163, 163-1. Plaintiffs have filed a Reply and a Notice of
Supplemental Authority. Docket Nos. 164, 165. For the reasons set forth below, the
undersigned recommends that Plaintiffs’ Motion (Docket No. 158) be GRANTED.

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I. BACKGROUND
On May 1, 2020, Plaintiffs filed a Complaint challenging aspects of Tennessee’s statutory
provisions governing absentee voting. Docket No. 1. On June 12, 2020, Plaintiffs amended their
Complaint to add a claim specifically challenging the requirement that voters vote in person in
their first election if they registered to vote by mail or online (the “first-time voter claim”).
Docket No. 39, p. 33. Plaintiffs alleged that among their members, there were first-time voters
who registered by mail or online who wished to vote by mail due to the COVID-19 pandemic but
could not do so under the provision. Id. at 13-14. Plaintiffs identified Tennessee NAACP
member Corey Sweet as one such voter. Docket No. 51-1, p. 13-14, 44-46. 1 Plaintiffs also filed
a motion to enjoin enforcement of the first-time voter provision. Docket No. 40. On September
9, 2020, this Court granted Plaintiffs’ motion for a preliminary injunction with respect to the
first-time voter claim. Docket Nos. 79, 80. Defendants filed a motion for reconsideration and
for a stay of the injunction. Docket Nos. 83, 87. Both motions were denied. Docket Nos. 103,
107. Defendants appealed the grant of the preliminary injunction to the Court of Appeals for the
Sixth Circuit and also moved for a stay pending resolution of the appeal. The Sixth Circuit
denied the request for a stay, and the preliminary injunction remained in force for the November
2020 election. See Memphis A. Philip Randolph Inst. v. Hargett, 977 F.3d 566, 567 (6th Cir.
2020). The Parties appear to agree that in that election, mail-in votes were almost certainly cast
by first-time voters who had registered by mail or online. See Docket No. 163, p. 10.
On June 22, 2021, the Sixth Circuit vacated the preliminary injunction on the grounds
that Mr. Sweet’s (and thus NAACP’s) first-time voter claim had become moot. Memphis A.

1

In what appears to be a scrivener’s error, Mr. Sweet was erroneously referred to as Corey
Stewart. Docket No. 151-1, p. 13-14.
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Philip Randolph Inst. v. Hargett, 2 F.4th 548, 561 (6th Cir. 2021). Specifically, the Sixth Circuit
found that:
When plaintiffs filed their amended complaint on June 12,
2020, Sweet was eligible to vote absentee based on a June 4,
2020 state-court injunction of the first-time voter law, which
construed Tenn. Code Ann. § 2-6-201(5) to permit “any
qualified voter who determines it is impossible or unreasonable
to vote in person at a polling place due to the COVID-19
situation” to vote absentee. Fisher, 604 S.W.3d at 392
(quoting Temporary Inj. Order, Fisher v. Hargett, No. 20-453III (Tenn. Ch. Ct., 20th Jud. Dist. Jun. 4, 2020)). On August 5,
2020, the Tennessee Supreme Court vacated the June 4, 2020
injunction and imposed new, stricter guidelines. Fisher, 604
S.W. 3d at 405. Under the new guidelines, § 2-6-201(5) only
includes individuals who have a “special vulnerability to
COVID-19 [or] are caretakers for persons with special
vulnerability to COVID-19.” Id. at 393.
After Fisher, Sweet no longer qualifies to cast an absentee
ballot under Tenn. Code Ann. § 2-6-201. Sweet does not claim
that he has a special vulnerability to COVID-19 or is a
caretaker to someone who has a special vulnerability, only that
he is concerned about the general risks of COVID-19.
...
Based on this updated information, it appears that Sweet no
longer has an actual, ongoing stake in this litigation.
Id. at 558, quoting Fisher v. Hargett, 604 S.W. 3d 181 (Tenn. 2020).
Further, the Sixth Circuit found that “Sweet’s alleged injury and the plaintiffs’ motion for
a preliminary injunction are inextricably tied to the COVID-19 pandemic, a once-in-a-century
crisis” and thus, “[t]he unique factual situation of this case makes it one of the rare election cases
where the challenged action is not capable of repetition.” Id. at 560-61. Plaintiffs then
dismissed their claims without prejudice, and this Court entered judgment on July 9, 2021.
Docket Nos. 151, 155, 156. Pursuant to Federal Rule of Civil Procedure 54(d)(2) and Local Rule
54.01(b), Plaintiffs filed the instant Motion to request an award of their attorneys’ fees incurred
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in securing and defending the preliminary injunction for the November 2020 election. Docket
No. 159.
II. LAW AND ANALYSIS
A. Recovery of Fees
“Our legal system generally requires each party to bear his own litigation expenses,
including attorney’s fees, regardless [of] whether he wins or loses.” Fox v. Vice, 563 U.S. 826,
832 (2011). Therefore, courts do not award “fees to a prevailing party absent explicit statutory
authority.” Buckhannon Bd. & Care Home v. W.Va. Dep’t of Health & Human Res., 532 U.S.
598, 602 (2001) (internal quotation marks and citation omitted). 42 U.S.C. §1988(b) provides
that the prevailing party in an action to enforce civil rights under 42 U.S.C. § 1983 may recover
“a reasonable attorney’s fee as part of the costs” of litigation. See Green Party of Tenn. v.
Hargett, 767 F.3d 533, 552 (6th Cir. 2014). A prevailing party is one who “receive[s] at least
some relief on the merits of his claim” that constitutes a “court-ordered change in the legal
relationship between the plaintiff and the defendant.” Buckhannon, 532 U.S. at 603-04 (internal
quotation marks and alterations in the original omitted).
“A plaintiff need not succeed on every claim in order to recover attorney’s fees. Success
on a single claim is sufficient to render it a prevailing party.” Tennessee State Conf. of the
NAACP v. Hargett, No. 3:19-cv-00365, 2021 WL 4441262, at *3 (M.D. Tenn. Sept. 28, 2021),
citing McQueary v. Conway, 614 F.3d 591, 603 (6th Cir. 2010). And, “if both the meritorious
and unmeritorious claims arise out of a common core of facts, and involve related legal theories,
a court should not exempt from its fee award the hours spent on the claims that did not succeed.”
Id., quoting Texas State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989)
(internal quotation marks and citation omitted).

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B. Prevailing Party Status
While Section 1988(b) provides for the recovery of attorney’s fees in a § 1983 case for
one who is a “prevailing party,” the determination of whether that title has been earned can be
complex. “[L]itigation is not like a sport in which one can easily classify every match as a win, a
loss, or a draw.” NAACP, 2021 WL 4441262, at *3. This court recently described how such a
determination may play out under very similar circumstances:
[A] claim may be raised and litigated in such a tight time
window—for example, in the runup to a fixed, irrevocable
deadline, such as an election—that no party ever had a
meaningful chance of obtaining a judgment in its favor.
Rather, a typical plaintiff with a meritorious claim in such a
case will merely obtain a preliminary injunction that remains in
force for the period of time in which the plaintiff actually needs
protection, only for the underlying claims, quite expectedly, to
then become moot and be dismissed. In light of these
complexities, the Sixth Circuit has endorsed a “contextual and
case-specific inquiry” governing prevailing party status that,
among other things, “does not permit [the court] to say that
preliminary-injunction winners” who do not receive any
judgment or further relief “always are, or never are, ‘prevailing
parties.’”
Id., quoting McQueary, 614 F.3d at 600 (emphasis and alteration in original).
Additional guidance indicates that, in order to be considered a prevailing party, a plaintiff
typically must have obtained a “material alteration of the legal relationship of the parties.”
Farrar v. Hobby, 506 U.S. 103, 113 (1992) (internal quotation marks and citation omitted).
Such alteration must be not only “court-ordered” and “material,” but also “enduring.”
McQueary, 614 F.3d at 597-99. A material change is one that “directly benefited plaintiffs by
altering how [the defendant] treated them.” Miller v. Caudill, 936 F.3d 442, 448 (6th Cir. 2019).
An enduring change is one that “provided plaintiffs with everything they asked for” and which is
“irrevocable.” Id. “A plaintiff crosses the threshold to ‘prevailing party’ status by succeeding on

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a single claim, even if he loses on several others and even if that limited success does not grant
him the ‘primary relief’ he sought.” McQueary, 614 F.3d at 601.
Plaintiffs, who assert that they are “only seeking fees on the First Time Voter claim,”
contend that as to that claim, they are the prevailing party because they obtained “at least some
relief on the merits of [their] claim.” Docket No. 159, p. 3, n.1, quoting Farrar, 506 U.S. at 111
(internal quotation marks omitted; alteration in original). Plaintiffs argue that the preliminary
injunction they received was material because it “constitutes court-ordered relief that changed
the legal relationship between the parties to the direct benefit of Plaintiffs by prohibiting
Defendants from enforcing the in-person voting requirement against Plaintiffs’ members and
other first-time voters during the pandemic.” Id. at 4.
Plaintiffs further argue that the relief they obtained was enduring because “it provided
Plaintiffs’ members and other eligible Tennessee voters who registered online or by mail with
the irrevocable opportunity to vote by mail in the November 2020 election during the height of
the COVID-19 pandemic.” Id. Plaintiffs contend that they obtained court-ordered relief that
“endured until the case was mooted by the passage of time.” Id. at 5, quoting McQueary, 614
F.3d at 599 (internal quotation marks omitted).
Additionally, Plaintiffs argue that they obtained enduring relief because “the benefit they
secured through the preliminary injunction—the opportunity to vote [by mail] in the 2020
election, during which the COVID-19 pandemic presented a special burden on in-person
voting—cannot be retroactively nullified, and is therefore irrevocable.” Id., citing Miller, 936
F.3d at 449. Finally, Plaintiffs assert that they obtained “court-ordered, material, enduring relief
based on a determination that they were likely to succeed on the merits of their claim.” Id. at 6,
citing Docket No. 79, p. 55 (“Here, application of the applicable Anderson-Burdick framework,

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in light of the current record, indicates that it is likely that Plaintiffs will prevail on their claim
that the first-time voter requirement violates the First Amendment right to vote.”).
Defendants disagree, arguing that “[w]hile Plaintiffs secured a preliminary injunction, it
was only for purposes of the November 3, 2020, general election, and it was subsequently
vacated by the Sixth Circuit,” after which “Plaintiffs voluntarily abandoned their claims and
moved to dismiss their case.” Docket No. 163, p. 4-5. Thus, Defendants argue that the relief
Plaintiffs obtained was neither enduring nor irrevocable. Id. Further, Defendants contend that
Plaintiffs did not receive, in the language of McQueary, everything they asked for because they
sought “not only preliminary- but also permanent-injunctive relief and a declaration that the firsttime-voter provision is unconstitutional” but obtained “only a preliminary injunction—and just
for the November 2020 general election.” Id. at 7.
The Parties agree that Plaintiffs won a preliminary injunction that barred the State from
enforcing its first-time voter provision during the November 2020 election and that absentee
votes were likely cast as a result. Where they differ is their characterization of this victory.
Defendants argue that ultimately “there was no permanent change in the State’s ability to enforce
its first-time-voter provisions” and that Plaintiffs are attempting to “conflate the irrevocability of
the change in legal relationship between the parties [] with the ‘irrevocable’ nature of the votes
that were cast absentee.” Docket No. 163, p. 9-10. Plaintiffs contend that they “obtained relief
from the first-time voter restriction during the general election held at the height of the COVID19 pandemic. And a win is a win—regardless of whether the winner runs up the score.” Docket
No. 164, p. 2, quoting Miller, 936 F.3d 449-50 (internal quotation marks omitted).
The Court agrees. Here, the “contextual and case-specific inquiry” required by
McQueary involves looking at the particular circumstances of the November 2020 general

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election, held during the height of the COVID-19 pandemic, to which the Sixth Circuit found
Plaintiffs’ claims were “inextricably tied.” Memphis A. Phillip Randolph Inst., 2 F.4th at 560.
The change secured by the preliminary injunction (the ability of first-time voters who registered
by mail or online to vote absentee in the November 2020 general election) altered the
relationship between the Parties for the purposes of that election and is irrevocable and enduring.
Those votes can never be uncast. The fact that a permanent injunction was never granted and the
preliminary injunction was later vacated has no effect on that reality. As this court recently held
in similar circumstances, Plaintiffs “obtained more or less everything they wanted, except for the
entry of a judgment, an order making permanent the preliminary relief that they had already
received, and a declaration memorializing the reasoning that the court had already utilized.”
NAACP, 2021 WL 4441262, at *5. This change “directly benefited plaintiffs by altering how
[the defendant] treated them.” Miller, 936 F.3d at 448. Defendants’ theory that Plaintiffs’ relief
must come in the form of a permanent injunction fails because Plaintiffs obtained irrevocable
relief for the relevant election analogous to the marriage licenses in Miller that the State could
not later nullify. Miller, 936 F.3d at 449. Similarly, the State cannot nullify the votes cast in the
November 2020 election. “That is the success that the plaintiffs wanted, and they both got it and
kept it. The plaintiffs’ success, in other words, was, as required, court-ordered, material, and
enduring.” Id. For this reason, Plaintiffs are the prevailing party as to the first-time voter claim.
C. Reasonable Attorneys’ Fees
1. Calculating the Lodestar
“A reasonable attorney’s fee under § 1988 is one calculated on the basis of rates and
practices prevailing . . . in the community for similar services by lawyers of reasonably
comparable skill, experience, and reputation . . . that grants the successful civil rights plaintiff a

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fully compensatory fee.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 286 (1989) (internal
citations omitted). “The most useful starting point for determining the amount of a reasonable
fee is the number of hours reasonably expended on the litigation multiplied by a reasonable
hourly rate.” Hensley, 461 U.S. at 433. Known as the “lodestar” amount, this calculation
provides an “initial estimate of the value of a lawyer’s services.” Id. This is not necessarily the
end of the inquiry. After determining the lodestar amount, “the court may adjust the fee upward
or downward to reflect relevant considerations peculiar to the subject litigation.” NAACP, 2021
WL 4441262, at *3 (emphasis added), quoting Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343,
349 (6th Cir. 2000) (internal quotation marks omitted). “But trial courts need not, and indeed
should not, become green-eyeshade accountants.” Fox, 563 U.S. at 838. “The essential goal in
shifting fees . . . is to do rough justice, not to achieve auditing perfection;” therefore, “trial courts
may take into account their overall sense of a suit, and may use estimates in calculating and
allocating an attorney’s time.” Id.
2. Documentation
“The party requesting fees bears the burden to submit adequate documentation of the
hours reasonably expended.” NAACP, 2021 WL 4441262, at *6, quoting Plumbers & Pipefitters
Local No. 396 Combined Fund v. State Line Plumbing & Heating, Inc., No. 4:10-CV-1936, 2011
WL 1769085, at *2 (N.D. Ohio May 9, 2011) (internal quotation marks and citation omitted). A
party seeking fees must provide “billing time records that are sufficiently detailed to enable the
courts to review the reasonableness of the hours expended.” Woolridge v. Marlene Indus. Corp.,
898 F.2d 1169, 1177 (6th Cir. 1990). “[A] plaintiff has an obligation to provide documentation
that at least allows the court to make a general assessment of the reasonableness of the hours

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claimed, in the context of ordinary conventions of attorney work logs.” NAACP, 2021 WL
4441262, at *6.
Plaintiffs have submitted a chart indicating the number of hours worked by Plaintiffs’
counsel and paralegals for which compensation is sought as well as the hourly rates of those
professionals. Docket No. 159-1. These numbers are substantiated by Declarations supporting
the reasonableness of the hours and rates claimed. Docket Nos. 159-2 through 159-5. According
to Plaintiffs’ calculations, their lodestar amount is $99,222.13. Id. Plaintiffs’ counsel have also
provided detailed billing records. Docket Nos. 159-2, p. 18-27; 159-3, p. 11-27; 159-4, p. 10-18.
Defendants do not dispute the number of hours Plaintiffs’ counsel claim to have worked on the
case nor the reasonableness of their hourly rates. See Docket No. 163. Instead, Defendants
argue that Plaintiffs’ fee request should be reduced because “Plaintiffs’ counsel have billed for
an overstaffed legal team, unknown and vague activities that cannot be reviewed, hours
expended after this matter became moot, and hours expended on appeal—where they ultimately
lost.” Docket No. 163, p. 11.
3. Defendants’ Objections
a) Staffing
Defendants argue that “this case has been overstaffed since its inception.” Docket No.
163, p. 12. Specifically, Defendants contend that only three lawyers performed “the lion’s share
of the work,” while the hours spent by the other attorneys “were unnecessary, including multiple
attorneys reviewing documents, participation in phone calls, and so on.” Id. at 12-13.
Defendants assert that Plaintiffs’ fees “should be reduced by half for that reason alone.” Id. at
13.

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The Court has reviewed the documentation supplied by Plaintiffs. Docket Nos. 159-1
through 159-5. It does not appear that the number of attorneys and paralegals involved (twelve)
is excessive for a case of this nature and complexity. Further, the Court agrees that delegating
more time-consuming tasks to junior attorneys and paralegals (rather than highly experienced
attorneys with their correspondingly high hourly rates) was a reasonable and cost-effective
decision on the part of Plaintiffs. Unlike in the aforementioned recent similar case that was
staffed by twenty-six legal professionals (NAACP v. Hargett), the Court finds that Plaintiffs’
staffing level does not indicate redundancy or require a reduction in fees. See NAACP, 2021 WL
4441262, at *7 (“Ultimately, the court concludes that the sheer number of attorneys . . . involved
in this litigation warrants a reduction from the lodestar amount.”).
b) Adequacy of Documentation
Defendants contend that “a number of Plaintiffs’ fee entries are simply unreviewable,” as
they state “emails” or “telephone conferences” without additional detail. Docket No. 163, p. 13.
The Court disagrees. First, some of the entries that Defendants object to as vague indicate that in
fact no fee is sought for that activity (i.e., it is claimed at 0% for $0.00). See, e.g., Docket No.
163-1, p. 1, 5, 7. Next, most of the other entries identified have descriptions that appear to be
adequate. See, e.g., Docket No. 163-1, p. 1 (entry of .25 hours claimed for a lawyer to
“participate in call with co-counsel re next steps re MAPRI v. Hargett”). To be sure, certain
entries might benefit from some additional detail. See, e.g., id. at 2 (“Zoom with counsel;
emails; review draft filings”). Yet, taking into account the relatively short amount of time
associated with such entries as well as the overall context of the litigation, the Court does not
find that these entries are vague to the point of evading review and necessitating a reduction in

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fees. The Court is able to make “a general assessment of the reasonableness of the hours
claimed.” NAACP, 2021 WL 4441262, at *6.
c) Hours Related to Appeal or Occurring After August 5, 2020
Defendants assert that Plaintiffs are inappropriately claiming fees for hours billed after
the case proceeded to appeal at the Sixth Circuit and after the case became moot. Docket No.
163, p. 11-12, citing Fisher, 604 S.W.3d 381 (decided on August 5, 2020). As to the first point,
Plaintiffs contend that they “have not sought fees on the merits of the appeal” but that because
“Plaintiffs were successful in defeating Defendants’ emergency stay motion and that success was
crucial to maintaining their relief for the November 2020 election,” they are requesting fees “for
that narrow set of activities on appeal.” Docket No. 164, p. 4 (emphasis in original). The Court
agrees that defeating the emergency stay motion was essential for Plaintiffs to “keep” the success
they had won through the critical date of November 3, 2020. Therefore, the Court will not
reduce fees on the basis that they were expended on defending the injunction.
As to the second point, Plaintiffs argue that “[t]he Fisher court did not address the issue
of first-time voters and such a cutoff would make no sense given that the relief Plaintiffs won
here concerned the November 2020 election.” Id. Asserting that “during the height of the
COVID-19 pandemic, the matter was certainly capable of repetition,” Plaintiffs argue that the
Fisher court held that “the matter was both moot and not capable of repetition yet evading
review at the time of its [later] decision because the injunction was ‘inextricably tied’ to the
COVID-19 pandemic and, by that time, recurrence was unlikely.” Id. at 4-5, quoting Memphis
A. Phillip Randolph Inst., 2 F.4th at 560. The Sixth Circuit did indeed determine that “[a]fter
Fisher, Sweet no longer qualifies to cast an absentee ballot under Tenn. Code Ann. § 2-6-201,”
and thus that his (and by extension, the NAACP’s) claim was moot. Docket No. 146, p. 11-12.

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Yet, Plaintiffs are correct that the Fisher court did not address the issue of first-time voters. See
Fisher, 604 S.W. 3d 381. Further, given that the relief Plaintiffs sought concerned the November
2020 election, the fact that mootness was determined in June 2021 (after the election had taken
place and votes were cast) cannot be said to have rendered legal services in the late summer and
early fall of 2020 “per se unnecessary” even though they took place after the decision in Fisher.
Thus, the Court finds that Plaintiffs are entitled to recover legal fees for dates up to the date of
the November 2020 election.
III. CONCLUSION
For the foregoing reasons, the undersigned recommends that Plaintiffs’ Motion (Docket
No. 158) be GRANTED.
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has fourteen (14) days
from receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have fourteen
(14) days from receipt of any objections filed in this Report in which to file any response to said
objections. Failure to file specific objections within fourteen (14) days of receipt of this Report
and Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas
v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985), reh’g denied, 474 U.S. 1111 (1986).

JEFFERY S. FRENSLEY
United States Magistrate Judge

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