David Brat v. Gloria PersonhuballahDavid Brat v. Gloria Personhuballah
Appeal from a Three-Judge Panel of the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge, Presiding, together with Albert Diaz, Circuit Judge, and Liam O‘Grady, District Judge. (3:13-cv-00678-REP-LO-AD)
Argued: December 6, 2017
Decided: February 26, 2018
Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.
Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judgе Traxler and Judge Keenan joined.
ARGUED: Michael A. Carvin, JONES DAY, Washington, D.C., for Appellants. Marc Erik Elias, PERKINS COIE LLP, Washington, D.C., for Appellees Gloria Personhuballah and James Farkas. Trevor Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees James B. Alcorn, Clara Belle Wheeler, and Singleton B. McAllister. ON BRIEF: Anthony J. Dick, JONES DAY, Washington, D.C., for Appellants. Mark R. Herring, Attorney General, Stuart A. Raphael, Solicitor General, Matthew R. McGuire, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, for Appellees James B. Alcorn, Clara Belle Wheeler, and Singleton B. McAllister. Kevin J. Hamilton, William B. Stafford, Abha Khanna, PERKINS COIE LLP, Seattle, Washington, for Appellees Gloria Personhuballah and James Farkas.
The main question presented in this appeal is whether intervening defendants can be required to pay a portion of prevailing plaintiffs’ attorneys fees and costs, awarded under
Three Virginia voters commenced this action challenging a state law‘s delineation of Virginia‘s Third Congressional District as a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. They named as defendants the Virginia State Board of Elections, some members of the Board in their official capacities, and the Attorney General of Virginia (collectively, “the Commonwealth” or “Virginia“). A three-judge district court
Shortly after commencement of the action, eight U.S. Congressmen from Virginia, who neither resided in nor represented the Third District, were granted permission to intervene as defendants to defend the Third District based on their claim that granting relief to the plaintiffs would upset existing congressional district boundaries and constituent relationships and engender confusion among voters. After trial, the court concluded that the Third District was indeed a racial gerrymander.
The Commonwealth determined not to appeal, but the Intervening Congressmen did. On appeal, the Supreme Court remanded the case for consideration of its recent decision in Alabama Legislative Black Caucus v. Alabama, 135 S. Ct. 1257 (2015), and the district court, after considering Alabama, again concluded that the Third District was a racial gerrymander. Once agаin, the Commonwealth determined not to appeal, but again the Intervening Congressmen did. The Supreme Court rejected that appeal on the ground that the Intervening Congressmen lacked standing. Wittman v. Personhuballah, 136 S. Ct. 1732, 1736 (2016).
On the plaintiffs’ motion, the district court awarded the plaintiffs as prevailing parties roughly $1.35 million in attorneys fees and costs and, in a 2-1 opinion, assessed roughly $480,000 of those fees and costs against the Intervening Congressmen based on their independent appeals to the Supreme Court. Senior District Judge Robert Payne dissented, concluding that the Supreme Court‘s decision in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), controlled and precluded the assessment of attorneys fees and costs against intervenors who were “blameless,” meaning that they were not charged as wrongdoers and legal relief could not have been obtained from them. From the district court‘s order assessing attorneys fees and costs against them, the Intervening Congressmen appealed, relying on Zipes.
In Zipes, the Supreme Court held that an award of attorneys fees under a fee-shifting statute, such as
I
With its enactment of H.B. 251 on January 25, 2012, Virginia redrew its congressional district lines, as it was required to do in response to the 2010 decennial census. Three voters commenced this action under
Shortly after this action was commenced, eight Congressmen representing various congressional districts in Virginia, but not the Third District, filed a motion to intervene as defendants, claiming that they had an interest in the existing 2012 map and that the plaintiffs’ request that the map be redrawn “would not only upset existing district boundaries and constituent relationships but also engender confusion among the voting public.” The district court granted their motion.
Following a bench trial, the district court found that the Third District was an unconstitutional racial gerrymander, in violation of the Equal Protection Clause. Page v. Va. State Bd. of Elections, 58 F. Supp. 3d 533 (E.D. Va. 2014). In its order, dated October 7, 2014, the court directed that the 2014 congressional elections “proceed as scheduled” under the existing 2012 map given the imminence of those elections, but it enjoined the Commonwealth from holding future elections until a new redistricting plan was adopted. It referred the matter to the Virginia General Assembly to adopt a new redistricting plan “as expeditiously as possible.”
Given the factual findings made by the district court, the Commonwealth decided not to appeal the district court‘s October 7, 2014 order, concluding that the Supreme Court would not likely reverse the decision under the demanding “clear error” standard of review. The Intervening Congressmen, however, did appeal, invoking
The Supreme Court vacated the district court‘s order and remanded the case “for further consideration in light of Alabama Legislative Black Caucus v. Alabama.” Cantor v. Personhuballah, 135 S. Ct. 1699 (2015) (mem.).
On remand, the district court considered Alabama and issued a new order, dated June 5, 2015, applying the Alabama legal framework and again concluding that the Third District was an unconstitutional racial gerrymander.2 Page v. Va. State Bd. of Elections, 2015 WL 3604029 (E.D. Va. June 5, 2015). The court‘s order gave the Virginia General Assembly until September 1, 2015, to adopt a redistricting plan. Again, the Commonwealth decided not to appeal, but the Intervening Congressmen did.
While that second appeal was pending, the September 1 deadline passed, and the district court proceeded to address a remedial redistricting plan, soliciting proposed plans from the parties and any interested nonparties. It also appointed a special master to assist it in reviewing the plans and designing a new map. The Intеrvening Congressmen filed motions to stay this process pending their appeal to the Supreme Court, but both the district court and the Supreme Court denied them. By order dated January 7, 2016, the district court selected for implementation a remedial plan proposed by the special master.
Following the district court‘s original order of October 7, 2014, that found the Third District unconstitutional, the plaintiffs filed two petitions seeking attorneys fees and costs pursuant to
From the district court‘s order awarding attorneys fees and costs, the Intervening Congressmen filed this appeal, contending that the district court misinterpreted Zipes and that the assessment of roughly $480,000 in fees and costs against them must be reversed. While the plaintiffs contend that the district court ruled correctly, they argue conditionally that if the assessment of fees against the Intervening Congressmen is reversed, the total award of $1.35 million should be assessed against the Commonwealth. Understandably, the Commonwealth objects to the plaintiffs’ suggestion, arguing that it should not be held responsible for any fees incurred by reason of the Intervening Congressmen‘s actions.
II
After awarding plaintiffs, as prevailing parties, their fees and costs of roughly $1.35 million under
The plaintiffs contend:
[R]esolution of this appeal may be of keen concern to [the Intervening Congressmen] and the [Commonwealth], but it is of little concern to [the plaintiffs]. Regardless of the disposition of this appeal, the Panel awarded [the plaintiffs] a total award of $1,346,571.74. If [the Intervening Congressmen] are not held responsible for a portion of that total award, then [the plaintiffs] are entitled to a full recovery against the [Commonwealth] — who chose not to appeal the overall fee award.
Nonetheless, the plaintiffs argue further that the Intervening Congressmen “had cast themselves as the functional equivalent of a defendant, dramatically run up [the plaintiffs‘] fees, and done so not in pursuit of any cognizable legal interest . . . but to stand in the schoolhouse door in a futile attempt to block the remedy of a bald racial gerrymander.” They conclude that the Intervening Congressmen, by reasоn of their action, “were not ‘innocent’ in the relevant sense” and therefore fell outside the general rule established in Zipes.
The Commonwealth contends that the dispute is between the Intervening Congressmen and the plaintiffs “over which of them is responsible for Plaintiffs’ fees incurred after [the Commonwealth] stopped defending [the Third District]. The outcome of that dispute does not affect [the Commonwealth‘s] liability for the fees previously awarded against [it], a judgment that [the Commonwealth] did not appeal and that [the Commоnwealth has] already paid and satisfied.” Thus, it argues that if Zipes is applicable, then the plaintiffs themselves must bear the fees and costs that they incurred in litigating against the Intervening Congressmen. “And if Zipes does not apply, then [the Intervening Congressmen] must bear Plaintiffs’ fees and costs. In neither case would [the Commonwealth] bear any increased liability.”
The principal dispute in this appeal thus turns on whether Zipes prohibits an attorneys fees award under
Under the traditional American rule, the prevailing party in a suit is not entitled to recover reasonable attorneys fees аnd costs from the losing party. See Alyeska Pipeline Serv. Co., v. Wilderness Soc‘y, 421 U.S. 240, 247 (1975). But Congress has provided exceptions to that rule with certain fee-shifting statutes, such as
The Zipes Court announced a “categorical” rule that “district courts should . . . award Title VII attorney‘s fees against losing intervenors only where the intervenors’ action was frivоlous, unreasonable, or without foundation,” 491 U.S. at 761, and it noted that the rule is applicable to similar fee-shifting statutes, such as
Awarding attorney‘s fees against such . . . intervenor[s] would further neither the general policy that wrongdoers make whole those whom they have injured nor Title VII‘s aim of deterring employers from engaging in discriminatory practices.
Under the categorical rule announced in Zipes, it is apparent that the Intervening Congressmen in this case were “blameless” intervenors (i.e., persоns not charged with violating the law) and therefore should not have been assessed attorneys fees under the fee-shifting statutes in question. See Zipes, 491 U.S. 762 (emphasizing the “crucial connection between liability for violation of federal law and liability for attorney‘s fees under federal fee-shifting statutes“). The plaintiffs sued the Commonwealth for enacting an unconstitutional law — namely, H.B. 251 — delineating Virginia‘s congressional districts, including the Third District, and they sought relief against the Commonwealth, the only party from whom they could obtain relief. The Intervening Congressmen, on the othеr hand, were not alleged to have carried out the unconstitutional delineation of congressional districts — they were federal representatives who were not charged with any responsibility in the enactment of the state law. Moreover, the relief that the plaintiffs sought could not have been obtained from the Intervening Congressmen, who were legally unaffiliated with the government of the Commonwealth and therefore incapable of adopting a new redistricting plan, as the plaintiffs requested. Accordingly, the Intervening Congressmen were not responsible for the plaintiffs’ fees. As the Supreme Court aptly noted:
[T]he party legally responsible for relief on the merits . . . is the party who must pay the costs of litigation . . . and it is clearly the party who should also bear fee liability under § 1988.
Zipes, 491 U.S. at 763 (second omission in original) (quoting Kentucky v. Graham, 473 U.S. 159, 164 (1985)).
Moreover, even though the Intervening Congressmen defended the Commonwealth‘s 2012 law and presented the same arguments as the Commonwealth in doing
For these reasons and because no party contends that the Intervening Congressmen‘s actions were frivolous, unreasonable, or without foundation, the Intervening Cоngressmen should not, under Zipes, have been assessed with payment of any of the attorneys fees and costs awarded to the plaintiffs.
In concluding otherwise, the district court created a construct of Zipes that is simply not justified, either by its holding or its reasoning. The district court in essence collapsed the status and purpose of the Congressmen as intervenors with the status of the Commonwealth as defendant, overlooking (1) that the U.S. Congressmen did not enact the unconstitutional state law; (2) that
Turning in particular to the district court‘s reasoning, the court stated that the Intervening Congressmen “had the ability to grant Plaintiffs’ relief on the merits by simply dropping [their] defensе,” Personhuballah, 239 F. Supp. 3d at 940 (emphasis in original), and that “[w]hen they failed to do so, ‘blame,’ as Zipes defined it, could only lie with [the Intervening Congressmen], who fully and willingly defended the law,” id. at 941 (emphasis added). This is a curious proposition — that by defending a practice or a law, intervenors thereby become wrongdoers responsible for that practice or law. More importantly, this clearly misses the point of Zipes, which applied its categorical rule to intervenors who were “blameless” under Title VII — i.e., intervenors who had not been found to have committed wrongdoing under the relevant statute. The Intervening Congressmen in this case were indeed blameless, as they were never accused of enacting or enforcing an unconstitutional law, nor were they found to have violated
In every lawsuit in which there is a prevailing Title VII plaintiff there will also be a losing defendant who has committed a legal wrong. That defendant will . . . be liable for all of the fees expended by the plaintiff in litigating the clаim against him, and that liability alone creates a substantial added incentive for victims of Title VII violations to sue.
Zipes, 491 U.S. at 761. Clearly, simply engaging in the act of litigating and taking a position opposed to the plaintiffs are not violations of
Nonetheless, the district court pressed further, concluding that the Intervening Congressmen were liable for attorneys fees based on a principle that “when intervenors functionally replace the original defendants in the defense of an unconstitutional
Of course, an intervenor may sometimes raise an argument that brings into question not merely the appropriateness of the remedy but the plaintiff‘s very entitlement to relief. Here, for example, petitioner advanced one argument that would have prevented the District Court‘s approval of any relief for Subclass B respondents. But that an intervenor can advance the same argument as a defendant does not mean that the two must be treated alike for purposes of fee assessments.
Zipes, 491 U.S. at 765. It is not the parallel advancement of positions that determines whether the Zipes principle applies; it is whether the intervenors are wrongdoers from whom plaintiffs could obtain relief. In the end, Congress shifted attorneys fees to wrongdoers under
Finally, the district court concluded that the Intervening Congressmen were not blameless because they somehow were responsible “as representatives of the sovereign will of the Commonwealth.” Personhuballah, 239 F. Supp. 3d at 941. More fully, the court stated, “[T]he defendants, whether they were the Attorney General, the individuals on the Board of Elections, or the intervening Representatives, were . . . ‘liable’ in their capacity as representatives of the sovereign will of the Commonwealth,” id. (emphasis added), because as the “sole defenders” of H.B. 251, the Intervening Congressmen were “capable of fully granting Plaintiffs’ relief on the merits, and they therefore assumed the risk of being ‘liable on the merits’ for the unconstitutional borders of the District as well,” id. at 942. With this proposition that the Intervening Congressmen were representatives of the “will of the Commonwealth,” the district court proceeded to step around the clear principle that U.S. Congressmen, who neither enact nor enforce a state law, cannot be held liable for a law‘s defect merely because they defend it. This is simply a twist on the court‘s unsupported proposition that engaging in the litigation as intervenors in opposition to the plaintiffs somehow violates
In reaching its construction of Zipes, the district court relied mainly on two cases, both of which are materially distinguishable because the intervening defendants in those cases were, as state aсtors, defending the challenged statute on behalf of the State. See Planned Parenthood of Cent. N.J. v. Att‘y Gen. of N.J., 297 F.3d 253, 263–65 (3d Cir. 2002) (declining to apply Zipes where the New Jersey legislature intervened to defend the constitutionality of a statute that it enacted when the New
At bottom, we disagree with the district court and find no grounds in Zipes, or elsewhere, for not applying its categorical rule. Since no party has suggested that the Intervening Congressmen have acted frivolously, unreasonably, or without foundation, we cоnclude that they cannot be held liable for any of the plaintiffs’ attorneys fees or costs under either
III
The plaintiffs argue that regardless of how we rule, they are, as prevailing plaintiffs, entitled to the full $1.35 million amount awarded by the district court, and if the Intervening Congressmen are not held to pay a portion, then the Commonwealth should pay the entire amount. The Commonwealth, on the other hand, argues that they are not responsible for any amount attributable to the Intervening Congressmen‘s actions, and that if the Intervening Cоngressmen are not held to pay a portion of the award, the plaintiffs should bear that portion under the default American rule that each party bears its own attorneys fees.
Our decision in Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir. 1994), is instructive on this issue. In Rum Creek, we stated, “Under the Supreme Court decision in Zipes, we are required to hold that the intervention-related fees and expenses in question here are not recoverable under
Accordingly, we conclude that the Commonwealth cannot be held liable for attorneys fees and costs incurred by the plaintiffs in litigating against the entry of the Intervening Congressmen or against the Intervening Congressmen‘s positions. Under the traditional American rule, the plaintiffs must bear those intervention-related fees.
We therefore vacate the district court‘s order of March 3, 2017, awarding attorneys fees and costs for reconsideration of
VACATED AND REMANDED