OCA-Greater Houston et al v. State of Texas et al

Filing 73

ORDER GRANTING 64 Motion for Attorney Fees, Costs, and Expenses. Signed by Judge Robert Pitman. (ml)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
OCA GREATER HOUSTON, et al.,
Plaintiffs,
v.
STATE OF TEXAS, et al.,
Defendants.

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1:15-cv-679-RP

ORDER
Before the Court are Plaintiff OCA-Greater Houston’s Motion for Attorneys’ Fees, Costs,
and Expenses (Dkt. 64), Defendants’ Response (Dkt. 68), and Plaintiff’s Reply, (Dkt. 71). After
reviewing these filings, the relevant case law, and the record in this case, the Court issues the
following order.
I. BACKGROUND
This case was initially filed by the late Mallika Das, a registered voter in Williamson County,
Texas, and OCA-Greater Houston, a non-profit organization dedicated to advancing the social,
political, and economic well-being of Asian-Pacific Americans, against Defendants, the State of
Texas and Secretary of State Carlos Cascos in his official capacity (“Defendants”). 1 Ms. Das and
OCA-Greater Houston sought to challenge Defendants’ enforcement of certain provisions of the
Texas Election Code (“TEC”) that govern the assistance offered to limited-English-proficient
voters.
Ms. Das passed away prior to the Court’s ruling on summary judgment, thus the case
proceeded based solely on OCA-Greater Houston’s claims. After an evidentiary hearing on standing,
Plaintiffs also named Williamson County and the Williamson County Elections Department in their suit. After a
settlement, the Court dismissed with prejudice Plaintiffs’ claims against these defendants. (See Order of Dismissal, Dkt.
42).
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the Court granted summary judgment in favor of OCA-Greater Houston and enjoined the
Defendants from the enforcement of certain provisions of the TEC to the extent the Court found
them to be inconsistent with section 208 of the Voting Rights Act. (See Order, Aug. 12, 2016, Dkt.
61).
Following its award of summary judgment to OCA-Greater Houston, the Court ordered the
Plaintiff to file briefing regarding any additional remedies necessary to timely effect necessary relief.
(See id.). Plaintiff then moved for a permanent injunction, which the Court denied after it concluded
Plaintiff’s motion was largely mooted by the measures Defendants outlined in their response to
Plaintiff’s motion. (See Order, Sept. 2, 2016, Dkt. 66). Defendants have appealed the Court’s award
of summary judgment to Plaintiff, and the appeal remains pending at the Fifth Circuit. (See Not. of
Appeal, Dkt. 69).
In its order granting Plaintiff summary judgment, the Court also ordered that Plaintiff be
compensated for reasonable attorney’s fees, costs, and expenses pursuant to 52 U.S.C. § 10310. (See
Order, Aug. 12, 2016, at 21, Dkt. 61). Thus, after Plaintiff filed its motion for permanent injunction,
it also filed a motion for attorneys’ fees costs and expenses. (Pl.’s Mot. for Attorney’s Fees, Dkt. 64).
Plaintiff seeks $197,124 in attorney’s fees (or alternatively, under reduced billing rates, $125,130)2
and $2,613.16 in litigation costs. (Id. at 7–9). Defendants respond that the fees and expenses
requested by Plaintiff are unreasonable, and that Plaintiff should be awarded no more than
$53,973.75 in attorney’s fees and $1,589.96 in costs. (Defs.’ Resp. at 10, Dkt. 68).
II. ATTORNEYS’ FEES
“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 . . . a reasonable attorney’s

Plaintiff’s motion in fact requested $111,780 in fees under their alternative fee schedule, but it appears to the Court that
$13,350 in requested fees were inadvertently excluded from that total. (Pl.’s Mot. for Attorney’s Fees at 8, Dkt. 64).
Thus, the Court has adjusted Plaintiff’s requested to account for that amount.

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fee . . . and other reasonable litigation expenses as part of the costs.” 52 U.S.C. § 10310(e). A
prevailing party is one who has obtained a “material alteration of the legal relationship of the parties
in a manner which Congress sought to promote the fee statute.” Davis v. Abott, 781 F.3d 207, 214
(5th Cir. 2015) (quoting Sole v. Wyner, 551 U.S. 74, 82 (2007)). In other words, a prevailing party is
one who has “succeeded on any significant claim affording it some of the relief sought,” or
“receive[d] at least some relief on the merits of his claim.” Id. (quoting Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) and Hewitt v. Helms, 482 U.S. 755, 760 (1987)); see
also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“[P]laintiffs may be considered ‘prevailing parties’
for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some
of the benefit the parties sought in bringing suit”). Typically, “an injunction or declaratory judgment,
like a damages award, will . . . satisfy [the prevailing-party] test.” Davis, 781 F.3d at 214 (quoting
Lefemine v. Wideman, 133 S.Ct. 9, 11 (2012) (per curiam)).
Here, neither party disputes that OCA-Greater Houston is a prevailing party. 3 Similarly,
neither party disputes that Mallika Das, who passed away before the Court rendered summary
judgment, was not a prevailing party. (See Defs.’ Resp. at 1, Dkt. 68; Pl.’s Reply at 2-4, Dkt. 71). The
parties dispute, however, what amount of fees OCA-Greater Houston should be able to recover as a
prevailing party for work Plaintiff’s counsel performed related to Ms. Das, whom Plaintiff’s counsel
also represented.
A.

Representation of Non-Prevailing Party

Defendants request a fifty-percent reduction of any fees charged on work related to both
Ms. Das and OCA-Greater Houston while Ms. Das’ claims remained pending, along with the
elimination of any work they argue is solely attributable to Ms. Das’ claims, including preparation for

While Defendants are appealing the Court’s decision in this case, and are thus challenging Plaintiff’s status as a
prevailing party, they acknowledge “that the Court has determined that OCA-[Greater Houston] is a prevailing party
entitled to fees.” (Defs.’ Resp. at 1 n.1, Dkt. 68).

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and attendance at her son’s deposition. (See Defs.’ Resp. at 1–3, Dkt. 68). Plaintiff instead argues that
because Ms. Das and OCA-Greater Houston made the same claims, and those claims involved the
same common core of facts, all of their requested fees should be awarded. (See Pl.’s Reply at 2–4,
Dkt. 71).
The Court cannot agree with either party. It is unreasonable to think that Plaintiff’s counsel
have spent no less time on their work had they not represented Ms. Das. But it is also unreasonable
to imagine that if Plaintiff’s counsel had solely been representing OCA-Greater Houston at the time
they filed a motion for summary judgment, for example, that motion would have taken half the
time. 4 Certainly, the central legal argument in this case—relating to whether portions of the TEC
violated the Voting Rights Act—was the same for both plaintiffs, and the next most timeconsuming argument was likely the issue of whether OCA-Greater Houston had standing. Plaintiff’s
counsel would have addressed both of these issues regardless of their representation of Ms. Das.
Further, as Plaintiff suggests, some of the time that Defendants argue was spent solely on
representing Ms. Das, such as attending her son’s deposition, would have reasonably been spent by
Plaintiff’s counsel even if Ms. Das had separate counsel. Thus, based on its study of Plaintiff’s
counsels’ billing entries, its review of the parties’ filings, and its understanding of the case, the Court
will reduce the total time billed by Plaintiff’s counsel by fifteen percent to account for time spent
representing a non-prevailing party. Cf. Hensley, 461 U.S. at 436–37 (“The district court may attempt
to identify specific hours that should be eliminated or simply reduce the award to account for the
limited success. The court necessarily has discretion in making this equitable judgment.”); Leroy v.
City of Houston, 906 F.2d 1068, 1083 (5th Cir. 1990) (reducing reasonable fee award amount by ten
percent to account for limited success).

As an example, in this twenty page motion, less than four pages relate primarily to Ms. Das. (See Pls.’ Mot. Summ. J. at
5–7, 14–15).
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B. Lodestar Amount
Turning to whether Plaintiff’s requested attorney’s fees, costs, and expenses are reasonable
as required by 52 U.S.C. § 10310(e), the Court must first calculate the “lodestar” by multiplying the
number of hours reasonably spent on the litigation times a reasonable hourly billing rate. See Hensley,
461 U.S. 424, 433. “[T]he lodestar method produces an award that roughly approximates the fee that
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). Thus, “the lodestar looks to ‘[t]he prevailing market rates in the relevant community.’” Id.
(quoting Blum v. Stenson, 465 U.S. 886, 195 (1984)). The “prevailing market rate” is the rate charged
by attorneys of “comparable experience, skill, and reputation.” Blum, 465 U.S. at 892 n.5. There is a
strong presumption that a fee calculated using the lodestar method is reasonable. Perdue, 559 U.S. at
552.
Four different attorneys represented Plaintiff on this matter. David Hoffman, an intellectual
property partner at Fish & Richardson, P.C., with more than ten years of experience, and Kenneth
Darby, an intellectual property associate at Fish & Richardson in his second year of practice,
completed most of the work on the case. (Pl.’s Mot. for Attorney’s Fees at 3–6, Dkt. 64). Plaintiff
was also represented by David S. Morris, who is Of Counsel at Fish & Richardson, and Jerry
Vattamala, Director of the Democracy Program at the Asian American Legal Defense and
Education Fund (“AALDEF”). (Id.). The Court will first address whether the fees Plaintiff requested
use a reasonable hourly rate, then consider whether Plaintiff’s counsel’s time was reasonably
expended.

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1.

Reasonable Rate

Plaintiff supplies two different fee schedules, one using their counsel’s standard rates, 5 and
another with lower, alternative rates, based on available data regarding prevailing market rates in the
Austin area by practice area, level of experience, and firm size. (See Pl.’s Mot. for Attorney’s Fees at
5–8, Dkt. 64). These fee schedules include the rates listed below:
Attorney

Standard Hourly Rate

Alternative Hourly Rate

David Hoffman

$675(2015)/ $690(2016)

$400

Kenneth Darby

$365(2015)/ $420 (2016)

$250

David Morris

$400

$300

Jerry Vattamala

$300

$300

(Id.). Plaintiff submitted evidence that the median hourly rate in Austin in 2015 was $300, that the
median hourly rate in Austin in 2015 in “Administrative and Public” law practice was $300, and that
the median hourly rate in Austin in 2015 in “Government and Administrative” law practice was
$263. (Id., Ex. 1-E, at 14–16, Dkt. 64-6). Plaintiff also submitted evidence indicating that median
hourly rates in Austin are generally somewhat lower for less experienced attorneys ($225 for an
attorney with two years experience or less) and much higher for attorneys at large law firms,
regardless of years of experience ($459 for an attorney at a firm with over 400 attorneys). (Id., Ex. 1E, at 18–19, Dkt. 64-6).
After reviewing the data provided by Plaintiff regarding market rates in Austin and
information regarding the various attorneys who represented Plaintiff, the Court finds that the
alternative rates proposed by Plaintiff are reasonable for comparable work in the same area.

For the Fish & Richardson attorneys, Plaintiff used billing rates for their counsel’s non-patent work. (See Pl.’s Mot. for
Attorney’s Fees at 7, Dkt. 64).

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2.

Reasonable Hours Expended

Plaintiff also submitted contemporaneous time records for the time that Plaintiff’s counsel
spent working related to Plaintiff’s claims against Defendants. These records reflect the hours listed
below for each of Plaintiff’s attorneys after a deduction of fifteen percent of the total time submitted
to account for time spent solely working on Ms. Das’ claims:
Attorney

Hours Expended

David Hoffman

103.8*(.85) = 88.23

Kenneth Darby

265.7*(.85) =225.85

David Morris

11.2*(.85) = 9.52

Jerry Vattamala

52.5*(.85) = 44.63

(Id. at 4).
Defendants argue that much of the requested time is excessive, unnecessary, vague, and
duplicative, and identify significant amounts of time they argue should be reduced as unreasonable.
Defendants give several examples of time they think should be reduced. After a careful review of the
time expended by Plaintiff’s counsel, the Court finds that all of the hours spent by Plaintiff’s counsel
were reasonably expended. 6 Rather than specifically address all of Defendants arguments, the Court
will give a few examples.
First, Defendants argue that time expended by Plaintiff’s counsel on a motion for permanent
injunction should not be compensated. The Court disagrees; Plaintiff could not have known that the
Defendants’ response to Plaintiff’s motion for permanent injunction, which described their actions
and planned actions, would render its motion largely moot. Instead, prior to learning of Defendants’
independent plans to implement the Court’s order, Plaintiff’s counsel performed work on the
The Court will, however, eliminate the limited time spent by Mr. Vattamala’s pro hac vice application (.25 hours) with
this Court. See Knauff v. Dorel Juvenile Grp., Inc., No. CIVA SA-08-CV-336-XR, 2010 WL 2545424, at *2 (W.D. Tex. June
21, 2010) (reviewing cases and concluding that “pro hac vice fees are not recoverable as costs because they are an
expense that an attorney pays for the privilege of practicing law . . . [an opposing party] should not be responsible for
paying these fees simply because [the prevailing party] chose to be represented by counsel who are not admitted to
practice in [the] district.”).

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motion that they reasonably considered necessary to their case in light of the Court’s order on
summary judgment.
Second, Defendants are critical of the time Mr. Darby spent preparing for the evidentiary
hearing as excessive. However, Mr. Darby was the only associate working on the matter and likely
the most familiar with the facts of the case and the evidence to be presented at the evidentiary
hearing. In addition, he prepared a twenty-page slide presentation for the hearing and delivered an
opening statement that was on par with some of the strongest oral advocates that come before the
Court. Thus, the Court concludes that the time he expended—approximately forty-three hours—for
a hearing that Plaintiff likely understood could be dispositive of their claims was reasonable.
The Court likewise rejects Defendants’ other arguments and concludes that it was reasonable
for Plaintiff to have three attorneys in attendance at the evidentiary hearing, as it was the same
number of attorneys as Defendants had present; that Plaintiff’s counsel’s time spent responding to
Defendants’ initial motion to dismiss was reasonable—even though that motion was later mooted—
because Defendants renewed it; that Mr. Vattamala’s time records demonstrate that the time he
expended was reasonable and should not be reduced even though it was recorded in fifteen-minute
increments; and that is was reasonable for Plaintiff to begin work on pretrial disclosures before they
knew that the Court would resolve its claim on summary judgment.
C.

Costs

In addition to arguing that Plaintiff’s attorney’s fees are unreasonable, Defendants also argue
that some of Plaintiff’s costs should be excluded, specifically, the cost of Mr. Vattamala’s travel to
the evidentiary hearing, a meal charge by Mr. Hoffman, a “club” fee on Mr. Darby’s hotel bill, and
the cost of transcripts for Mr. Das’ deposition.

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As the Court already stated, it finds that Plaintiff was reasonable in having three attorneys
attend the evidentiary hearing. Defendants also had three attorneys attend this hearing, and the
hearing itself addressed issues critical to Plaintiff’s claim.
Further although costs attributable solely to the representation of Ms. Das are not
reimbursable, because of the relevance of Mr. Das’ testimony to Plaintiff’s claim, the Court finds it
reasonable that Plaintiff would have ordered a copy of the deposition transcript even if Ms. Das had
been represented by separate counsel. In order to account for the fact that these costs were also
incurred to support Ms. Das’ claim, the Court will reduce these costs by half.
Next, the Court will allow as reasonable Mr. Darby’s hotel fee, as Plaintiff claims it is (and it
appears to be) a standard and automatic charge. (See Pl.’s Reply at 1, Dkt. 71).
Finally, the Court will exclude one third of Mr. Hoffman’s meal cost. As he was not traveling
at the time the cost was incurred, but in Austin, where he regularly works, his meal was not
compensable. The Court notes, however, that the receipt includes three entrees, and the Court
presumes that the receipt was submitted because it included the meals of two attorneys who were
traveling for the evidentiary hearing—Mr. Darby and Mr. Vattamala.
D.

Total Reasonable Costs and Fees

Based on the above analysis, the Court will award fees and costs to Plaintiff as follows:
Attorney

Hours Expended

Hourly Rate

Total

David Hoffman

103.8*(.85) = 88.23

$400

$35,292.00

259.9*(.85) = 220.92

$250

$55,228.75

5.8*(.85) = 4.93

$125 (travel)

$616.25

11.2*(.85) = 9.52

$300

$2,856.00

44.25*(.85) = 37.61

$300

$11,283.75

8.0*(.85) = 6.8

$150 (travel)

$1,020.00

Kenneth Darby
David Morris
Jerry Vattamala

Total Attorney’s Fees: $106,296.75

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Submitting Counsel

Requested Costs Total

Reduction

Total

Fish & Richardson

$1,810.72

$100.50

$1,710.22

AALDEF

$802.44

$0

$802.44

Total Costs: $2,512.66
III. CONCLUSION
For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Attorney’s Fees,
Costs, and Expenses (Dkt. 64).
It is therefore ORDERED that Defendants shall pay Plaintiff’s attorney’s fees in the
amount of $106,296.75 and costs in the amount of $2,512.66.
SIGNED on January 30, 2017.

ROBERT PITMAN
UNITED STATES DISTRICT JUDGE

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