239 F. Supp. 3d 929
E.D. Va.2017Background
- Plaintiffs challenged Virginia’s 2012 Third Congressional District as an unconstitutional racial gerrymander under the Equal Protection Clause; the district court ruled for Plaintiffs, enjoined elections under the plan, and awarded fees and costs.
- Several U.S. Representatives intervened to defend the plan after state defendants declined to continue defending it; those Intervenor-Defendants pursued appeals to the Supreme Court while the state defendants sometimes aligned with Plaintiffs.
- The Supreme Court vacated and remanded for reconsideration in light of Alabama Legislative Black Caucus v. Alabama; on remand the district court again found the plan unconstitutional, adopted a remedial plan, and the Supreme Court later dismissed the intervenors’ appeal for lack of standing.
- Plaintiffs sought reinstatement of an earlier fee award ($779,189.39) and additional supplemental fees (totaling $718,189.25) under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e); the court evaluated reasonableness and allocation between original Defendants and Intervenor-Defendants.
- The central legal question became whether intervenors who step in to defend an unconstitutional statute can be held liable for plaintiffs’ fees, and if so how to apportion fees between original defendants and intervenors.
Issues
| Issue | Plaintiff's Argument | Defendant/Intervenor Argument | Held |
|---|---|---|---|
| Whether intervenors who defended the district can be held liable for plaintiffs’ § 1988 fees | Intervenors functionally replaced defendants after state defendants abandoned the defense, so intervenors should bear fees for the period they prolonged litigation | Zipes and related precedent protect "blameless" intervenors from fee liability unless their intervention was frivolous; intervenors had no merits liability | Intervenors are liable for fees incurred after Apr 13, 2015 (date state defendants abandoned defense); court distinguished Zipes and followed cases treating functional intervenors as liable |
| Proper legal standard to determine intervenor fee liability (applicability of Zipes) | Zipes is distinguishable where intervenors defend an unconstitutional statute and effectively serve as functional defendants | Zipes establishes a categorical protection for intervenors who have not been found liable on the merits; fee liability must run with merits liability | Court adopts the reasoning of Third/Seventh/Eleventh Circuits: Zipes inapplicable where intervenors defend a statute and effectively take defendants’ role; fee liability may attach |
| How to allocate fees between original Defendants and Intervenors | Fees should be apportioned according to who caused and prolonged litigation; after state alignment with Plaintiffs, intervenors caused additional fees | Intervenors argued limits on liability and contended allocation should favor original defendants or that Zipes bars liability | Court exercised discretion: apportioned fees (Third Petition: Defs 28% / Intervenors 72%; Fourth Petition: Defs 14% / Intervenors 86%), with intervenors jointly and severally liable for their share |
| Reasonableness and amount of supplemental fee request | Plaintiffs sought reinstatement of prior award and additional fees for remand, remedial work, Supreme Court work; claimed Richmond market rates (with small 2016 increases) | Defendants/intervenors challenged excessive, duplicative, block-billed, vague entries and unjustified rate increases | Court reinstated prior $779,189.39 award; reduced supplemental awards after detailed lodestar review, disallowed 2016 rate increases for lack of local-market proof, applied reductions (notably 50% cut for excessive oral-argument prep), and awarded total fees/costs of $1,346,571.74 |
Key Cases Cited
- Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754 (1989) (Supreme Court rule limiting fee awards against "blameless" intervenors—fees only if intervention was frivolous, unreasonable, or without foundation)
- Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015) (Supreme Court decision requiring reconsideration of some race-based redistricting analyses)
- Planned Parenthood of Cent. N.J. v. Attorney Gen., 297 F.3d 253 (3d Cir. 2002) (intervenor-legislature that functionally defended statute may be treated as defendant for fee liability)
- Mallory v. Harkness, 109 F.3d 771 (11th Cir. 1997) (affirming fee allocation against intervenor where intervenor defended an unconstitutional statutory scheme)
- Charles v. Daley, 846 F.2d 1057 (7th Cir. 1988) (intervenors who vigorously defended statute treated as liable for fees)
- Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978) (standard for awarding fees against a losing civil-rights plaintiff)
- Kentucky v. Graham, 473 U.S. 159 (1985) (statement that fee liability and merits liability are linked)
- Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994) (interpreting Zipes broadly in union-intervention context; distinguished by district court here)
- Lefemine v. Wideman, 568 U.S. 1 (2012) (defining when a plaintiff is the prevailing party for fee awards)