David Brat v. Gloria Personhuballah, 883 F.3d 475

Background

Plaintiffs (three Virginia voters) sued the Commonwealth under § 1983, alleging Virginia’s 2012 congressional map packed Black voters into the Third District in violation of the Equal Protection Clause and sought injunction and new districts.
Eight U.S. Congressmen (not from the Third District) were allowed to intervene as defendants to defend the map; the State (Commonwealth) also defended initially but chose not to appeal adverse district-court rulings.
The three-judge district court found the Third District an unconstitutional racial gerrymander, issued remedial directions, and the intervenors appealed to the Supreme Court after the Commonwealth declined to appeal.
The Supreme Court remanded for consideration of Alabama Legislative Black Caucus, the district court again found a gerrymander, and the intervenors again appealed; the Supreme Court dismissed that appeal for lack of standing (Personhuballah).
The district court awarded plaintiffs roughly $1.35 million in § 1988/52 U.S.C. § 10310 fees and, in a 2–1 decision, assessed about $480,000 of that award against the intervening Congressmen for their independent appeals and defense.
The Fourth Circuit vacated and remanded, holding Zipes controls: blameless intervenors (not liable for the challenged law and not legally able to grant relief) cannot be assessed fees absent frivolousness; intervention-related fees against intervenors or attributable to their litigation are not recoverable from the State.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether intervenor-defendants who were not charged with wrongdoing can be assessed prevailing plaintiffs’ fees under § 1988 and § 10310	Plaintiffs argued intervenors functionally replaced the State, ran up fees, and thus should share fee liability; if intervenors not liable, State should pay full award	Intervenors argued Zipes bars fee awards against "blameless" intervenors unless their actions were frivolous, unreasonable, or without foundation; Commonwealth argued it should not bear costs attributable solely to intervenors	Held: Zipes controls; blameless intervenors cannot be assessed fees absent frivolousness. Fees attributable to intervenor litigation are not recoverable from the State; plaintiffs bear intervention-related fees under the American rule unless State is liable on the merits
Whether the Commonwealth must pay fees incurred litigating against intervenors once it stopped defending the law	Plaintiffs: if intervenors are not liable, the Commonwealth should cover the full award as prevailing party	Commonwealth: it should not be liable for fees arising from intervenors’ independent defense; plaintiffs should bear those costs	Held: Commonwealth not liable for fees incurred solely due to intervenors; such intervention-related fees are not recoverable under § 1988 and plaintiffs must bear them unless attributable to the State’s own liability
Whether the district court correctly treated intervenors as "functionally" defendants for fee purposes because they advanced the same defenses	Plaintiffs: intervenors advanced identical defenses and thus should be treated like defendants for fee-shifting purposes	Intervenors: parallel advocacy does not make them liable; liability depends on who is legally responsible for the unconstitutional act	Held: Rejected district court’s ‘‘functional replacement’’ approach; liability depends on legal responsibility for relief, not similarity of arguments
Whether any exception to Zipes applies because intervenors pursued appeals to Supreme Court	Plaintiffs: intervenors’ appeals were independent and prolonged litigation; equitable considerations justify fee allocation against them	Intervenors: Supreme Court appeals do not render their actions frivolous or make them liable under Zipes	Held: No exception; absent a finding that intervenors’ conduct was frivolous, Zipes precludes assessing fees against them

Key Cases Cited

Independent Fedn. of Flight Attendants v. Zipes, 491 U.S. 754 (holding fees may be assessed against losing intervenors only if their action was frivolous, unreasonable, or without foundation)
Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) (legal framework for assessing racial gerrymandering claims)
Personhuballah v. Wittman, 136 S. Ct. 1732 (2016) (Supreme Court dismissed intervenors’ appeal for lack of standing)
Kentucky v. Graham, 473 U.S. 159 (principle that fee liability follows merits liability)
Hensley v. Eckerhart, 461 U.S. 424 (standards for awarding attorney’s fees under federal fee-shifting statutes)
Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994) (applying Zipes to hold intervention-related fees are not recoverable under § 1988 by a prevailing plaintiff)