SHELBY COUNTY, ALABAMA, Plaintiff, v. Eric H. HOLDER, Jr., in his official capacity as Attorney General of the United States, Defendant Earl Cunningham, et al., Defendant-Intervenors.
Civil Action No. 10-651 (JDB)
United States District Court, District of Columbia.
Signed May 28, 2014
JOHN D. BATES, United States District Judge
MEMORANDUM OPINION
JOHN D. BATES, United States District Judge
Before the Court is [94] plaintiff Shelby County, Alabama‘s (Shelby County) motion for attorney‘s fees. Shelby County seeks $2,000,000 in fees under
Bert W. Rein, Brendan J. Morrissey, Thomas R. McCarthy, William S. Consovoy, Wiley Rein & Fielding LLP, Washington, DC, for Plaintiff.
Ernest Alan McFarland, Jared Michael Slade, Richard Alan Dellheim, Samuel Robert Bagenstos, U.S. Department of Justice, Washington, DC, for Defendant.
Kristen M. Clarke, NAACP Legal Defense & Educational Fund, Inc., Mark A. Posner, Jon M. Greenbaum, Lawyers’ Committee for Civil Rights, Arthur B. Spitzer, Laughlin McDonald, American Civil Liberties Union of the Nation‘s Capital, Washington, DC, Dale E. Ho, Debo P. Adegbile, Ryan P. Haygood, NAACP Legal Defense & Educational Fund, Inc.,
BACKGROUND
Shelby County brought this action against the Attorney General as a facial challenge to the constitutionality of Section 4(b) and Section 5 of the Voting Rights Act of 1965. Section 5 of the VRA required States to obtain federal permission before enacting any law related to voting, and
Defendant-intervenors—a group of voters from Shelby County, Alabama who believed in the constitutionality of the challenged provisions of the VRA—intervened on the side of the Attorney General. Together, both the Attorney General and defendant-intervenors pointed to the extensive 15,000-page legislative record that Congress amassed in support of its 2006 reauthorization of Section 5 and Section 4(b), Shelby Cnty., Ala. v. Holder, 811 F.Supp.2d 424, 428 (D.D.C.2011), as evidence that the challenged provisions remained justified by current needs, Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193, 203, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009). After a review of the legislative record, extensive briefing, and oral argument, this Court agreed, holding that the challenged provisions remained a congruent and proportional remedy to the 21st century problem of voting discrimination in covered jurisdictions, and granted summary judgment in favor of the United States. Shelby County, 811 F.Supp.2d at 428 (internal quotation marks omitted).
The Court of Appeals for the District of Columbia Circuit affirmed. Judge Tatel, writing for himself and Judge Griffith, acknowledged that [t]he legislative record is by no means unambiguous, but ultimately held that Congress drew reasonable conclusions from the extensive evidence it gathered and acted pursuant to the Fourteenth and Fifteenth Amendments in reauthorizing the challenged provisions. Shelby Cnty., Ala. v. Holder, 679 F.3d 848, 884 (D.C.Cir.2012). Judge Williams dissented. Troubled by Section 4(b)‘s reliance on aging data, he concluded that Section 4(b)‘s coverage formula was irrational and, therefore, unconstitutional. Id. at 885 (Williams, J., dissenting).
The United States Supreme Court reversed. Chief Justice Roberts, writing for a five-justice majority, first acknowledged that voting discrimination still exists; no one doubts that. Shelby County, 133 S.Ct. at 2619. Nevertheless, the Chief Justice repeated the Supreme Court‘s earlier admonition that the VRA imposes current burdens and must be justified by current needs. Id. (quoting Northwest Austin, 557 U.S. at 203). Ultimately, the Court held that the Section 4(b) coverage formula—an extraordinary departure from the traditional course of relations between the States and the Federal Government, id. at 2631—was unconstitutional. Justice Ginsburg (joined by Justices Breyer, Sotomayor, and Kagan) dissented, claiming that the majority err[ed] egregiously by overriding Congress’ decision. Id. at 2652 (Ginsburg, J., dissenting).
After the mandates issued from the courts above, this Court entered a final judgment in Shelby County‘s favor on October 11, 2013. See Oct. 11, 2013 Order [ECF No. 92]. Shelby County filed its motion for attorney‘s fees two weeks later, within the timeline provided for by the
LEGAL STANDARD
The fee-shifting provision of the Voting Rights Act provides:
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, other than the United States, a reasonable attorney‘s fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.
DISCUSSION
All agree that this fee petition presents several challenging legal questions, some of which are issues of first impression. After a careful review of the parties’ briefs, their presentations at oral argument, and the entire record in this case, and for the reasons discussed below, the Court holds that the United States waived its sovereign immunity in the Equal Access to Justice Act, but that Shelby County is not entitled to a fee award—even if this is the sort of action or proceeding in which the Court could award fees (a question the Court does not decide). Despite Shelby County‘s creative efforts to show otherwise, its fee petition is too square a peg for section 1973l(e)‘s round hole.
I. THE UNITED STATES WAIVED ITS SOVEREIGN IMMUNITY.
The first matter to be resolved is the issue of sovereign immunity, because jurisdiction must be established before a federal court may proceed to any other question, Galvan v. Fed. Prison Indus., Inc., 199 F.3d 461, 463 (D.C.Cir.1999) (citing Steel Co. v. Citizens for a Better Env‘t, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)), and the issue of [s]overeign immunity is jurisdictional: a court‘s jurisdiction to entertain a suit against the sovereign is circumscribed by the limits of the legislature‘s waiver of sovereign immunity. In re Al Fayed, 91 F.Supp.2d 137, 138 (D.D.C.2000); accord United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.). Although this fee petition presents several novel and challenging questions of law, the question of sovereign immunity is not one of them: the United States plainly waived its sovereign immunity for attorney‘s fees claims in section 2412(b) of the Equal Access to Justice Act.
The United States takes the aggressive position that because Shelby County‘s [opening] brief is completely silent on the essential question of the sovereign immunity, Shelby County has forfeited any argument that the United States has waived sovereign immunity, which by itself, is a fatal defect that must lead to denial of Shelby County‘s fee petition.1 Gov‘t‘s Opp‘n to Pl.‘s Mot. for Attorney‘s Fees (Gov‘t‘s Opp‘n) [ECF No. 103-1] at 5–6; see also id. at 5 (The United States should not be required to guess about the possible arguments Shelby County might have made but did not make.). In response, Shelby County points out that sovereign immunity is a defense, and Shelby County is under no obligation to anticipate a defense and raise it on behalf of the United States. Pl.‘s Reply [ECF No. 104] at 14 n.5.
Shelby County is correct. The D.C. Circuit has consistently (and intuitively) classified sovereign immunity as a defense. See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1161 n. 10 (D.C.Cir.2002) (analyzing the defense of sovereign immunity). A plaintiff seeking relief has no obligation to anticipate and negate a possible affirmative defense by the defendant. See, e.g., Flying Food Grp., Inc. v. NLRB, 471 F.3d 178, 183 (D.C.Cir.2006). That general principle applies to a sovereign immunity defense. Owens v. Republic of Sudan, 412 F.Supp.2d 99, 104 (D.D.C.2006) (Because sovereign immunity is in the nature of an affirmative defense, the plaintiff need not prove the absence of sovereign immunity in the first instance; rather, the defendant bears the burden of proving that the plaintiff‘s allegations do not bring its case within a statutory exception to immunity.) (internal quotation marks and emphasis omitted), aff‘d, 531 F.3d 884 (D.C.Cir. 2008). Likewise, a party seeking attorney‘s fees against the government has no obligation to address the issue of sovereign immunity unless and until the government raises it.
Here, the government raised a sovereign immunity defense in its opposition brief. Gov‘t‘s Opp‘n at 5. Shelby County timely responded in its next filing. Pl.‘s Reply at 12. Because Shelby County had no obligation to preemptively respond to a possible affirmative defense that the government might (or might not) choose to raise, Shelby County has not forfeited the argument that the United States waived sovereign immunity.2
B. The United States waived its sovereign immunity from attorney‘s fees claims in the Equal Access to Justice Act.
[T]he United States may not be sued without its consent, Mitchell, 463 U.S. at 212, so, [e]xcept to the extent it has waived its immunity, the Government is immune from claims for attorney‘s fees under general principles of sovereign immunity.3 Ruckelshaus v. Si-
Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.
A quick read of the statute would seem to decide the waiver question in Shelby County‘s favor, but the United States resists. To begin with, it concedes that Section 2412(b) works a partial waiver of sovereign immunity through application to the United States of certain other federal fee-shifting statutes that allow fees to prevailing parties. Gov‘t‘s Opp‘n at 8. It then offers a two-part test, claiming that Section 2412(b) authorizes reasonable attorney‘s fees against the United States under the terms of any statute that: (1) expressly permits suit against the United States for its violation of the statute, and (2) also provides for the award of attorney‘s fees against the losing party without mentioning the United States. Id. So both parties agree that sovereign immunity is waived by the EAJA when read in conjunction with generally applicable fee-shifting provisions in other statutes. And both agree that
The United States claims that Shelby County‘s lawsuit fails its proposed test for a waiver of sovereign immunity under
Again, Shelby County has the better of this argument. Shelby County cited
Further support for this conclusion comes from the Supreme Court‘s decision in Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969). There, the Supreme Court called
II. Fee Eligibility: Was This an Action or Proceeding to Enforce the Voting Guarantees of the Fourteenth or Fifteenth Amendment?
There are three plausible ways to interpret this ambiguous statutory language: (1) a plaintiff-specific interpretation, which would ask whether the plaintiff filed the lawsuit to enforce the voting guarantees of the fourteenth or fifteenth amendment; (2) a party-specific interpretation, which would ask whether the party seeking attorney‘s fees was participating in the lawsuit to enforce the voting guarantees of the fourteenth or fifteenth amendment; or (3) a neutral interpretation, in which the Court would assess whether, overall, the action or proceeding was to enforce the voting guarantees of the fourteenth or fifteenth amendment. The Court will consider each of these three possibilities in turn.
A. The Plaintiff-Specific Interpretation
Conceptually, it is difficult to assess whether a particular action or proceeding was one to enforce the relevant amendments without thinking about who filed it. The character of a lawsuit, after all, is shaped most significantly by the plaintiff‘s complaint. Cf. Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987) (It is long settled law that a cause of action arises under federal law only when the plaintiff‘s well-pleaded complaint raises issues of federal law.). Recognizing this, the plaintiff-specific interpretation would call on a court to ask whether the plaintiff filed the lawsuit in order to enforce the voting guarantees of the fourteenth or fifteenth amendment. If so, the action or proceeding is the type envisioned by the statute, and the prevailing party is eligible for attorney‘s fees (subject to the district court‘s discretion, see infra Section III).
To be sure, Shelby County has always argued that Section 5 and Section 4(b) of the VRA exceed[ed] Congress‘s enforcement authority under the Fourteenth and Fifteenth Amendments. Id. ¶¶ 39, 43. So in support of its motion, Shelby County argues that these arguments show that its lawsuit was indeed designed to enforce those amendments. See Pl.‘s Mot. at 6 (Shelby County enforced the ‘appropriate legislation’ limitation that the Fourteenth and Fifteenth Amendments include to ensure individual liberty and protect meaningful participation in the electoral process.); see also id. at 3 (The ordinary meaning of ‘enforce’ is ‘to compel obedience to.’ That is precisely what Shelby County has done here: it has compelled the Government‘s obedience to the outer limits of congressional enforcement authority under the Fourteenth and Fifteenth Amendments .... ) (internal citation omitted).
A clever argument, but it misses the mark. The fee-shifting provision in the VRA requires that the action or proceeding be designed to enforce the voting guarantees of the fourteenth or fifteenth amendment, not just the fourteenth or fifteenth amendment. By using the phrase voting guarantees, Congress made clear that it was referring to the individual voting rights protections that appear explicitly in the Fifteenth Amendment, see
Furthermore, Shelby County cites no case for the proposition that there is a generic constitutional right to meaningful participation in the electoral process. In fact, the voting guarantees of the Fourteenth and Fifteenth Amendments are targeted at a narrower, more specific set of individual voting rights—none of which Shelby County was seeking to enforce through its federalism-based, Tenth Amendment facial challenge to the VRA. Shelby County did not file this lawsuit to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments;
In any event, the plaintiff-specific interpretation has much to recommend it—most notably, its consistency with the statutory text and its relative administrability. But despite those advantages, it runs into one major hitch: three D.C. Circuit decisions implicitly reject this approach. Although none of these cases actually considered this precise issue, their logic makes it difficult for this Court to adopt the plaintiff-specific interpretation.
In 1980, the Commissioners of Medina County, Texas ... instituted a declaratory judgment action against the United States pursuant to Section 5 of the VRA, seeking a declaration that two redistricting plans ... which had failed to obtain preclearance from the Attorney General were legal. Comm‘rs Court of Medina Cnty., Tex. v. United States, 683 F.2d 435, 437-38 (D.C.Cir.1982). Three Mexican-American citizens residing and registered to vote in Medina County intervened as party defendants in the County‘s suit against the United States. Id. at 438. The United States and the defendant-intervenors prevailed in part when the County decided to abandon its plan, and the defendant-intervenors moved for fees. See id. The D.C. Circuit ultimately remanded for further analysis of the question of whether the defendant-intervenors were prevailing parties. But its analysis rests entirely on the assumption that had they truly prevailed, they would be entitled to attorney‘s fees. See id. at 444.
Similarly, in Donnell v. United States, 682 F.2d 240 (D.C.Cir.1982), the D.C. Circuit cabined the discretion of a district court to award attorney‘s fees to defendant-intervenors in a preclearance declaratory judgment action under Section 5 of the VRA. But in doing so, it held that prevailing defendant-intervenors can be awarded attorney‘s fees, even in a VRA action or proceeding filed by a covered jurisdiction seeking to obtain preclearance for a plan opposed by the Attorney General. See, e.g., id. at 248–49 ([A]n intervenor should be awarded attorneys’ fees only if it contributed substantially to the success of the litigation.). Finally, in a third example, the D.C. Circuit reaffirmed Donnell and Medina County in 1996. See Castro County, Tex. v. Crespin, 101 F.3d 121, 126 (D.C.Cir.1996) (holding that a party intervening as a defendant in a section 5 action may be a prevailing party, and thus, may be entitled to attorney‘s fees) (citing Medina County, 683 F.2d at 439-40).
Although none of these opinions explicitly analyzed the issue of how to describe a particular action or proceeding under
Hence, a district court in the D.C. Circuit cannot adopt the plaintiff-specific interpretation, whatever its merits. None of the complaints in Medina County, Donnell, or Crespin County were filed for the purpose of enforcing the voting guarantees of the Fourteenth or Fifteenth Amendments. Like this one, those cases were filed by those who sought to oppose enforcement of those individual voting rights protections, in favor of other interests, like federalism and local sovereignty—legitimate interests that are, importantly, beyond the scope of
B. The Party-Specific Interpretation
The next alternative is the party-specific interpretation, in which a court would ask whether the party seeking attorney‘s fees was participating in the action or proceeding in order to enforce the voting guarantees of the relevant amendments.9 Unlike the plaintiff-specific interpretation, this one is not foreclosed by D.C. Circuit case law, since all three of the D.C. Circuit cases on this issue involved a fee request from defendant-intervenors who were supporting the enforcement of individual voting rights. Of course, none of those cases actually discussed the issue, so they do not offer strong support for either conclusion.
Although this interpretation may not be foreclosed by D.C. Circuit precedent, it has other problems. Most importantly, it is in strong tension with the text of the statute.
A hypothetical illustrates this flaw in the party-specific interpretation. Imagine that one vote had switched at the Supreme Court, and the challenged provisions of the VRA had been upheld. Then, as prevailing parties, defendant-intervenors would
C. The Neutral Interpretation
Finally, the neutral interpretation would permit a fee award to any prevailing party, as long as the lawsuit could be described as an action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment—without regard to who filed the case or who was seeking fees. This interpretation has much to offer.
Most importantly, it is faithful to the statutory text. As discussed above,
Further, the only other federal court to have interpreted the action or proceeding language adopted the neutral interpretation. In that case, plaintiffs had proposed a ballot initiative for which no Spanish translation would be provided to voters. In re Cnty. of Monterey Initiative Matter, 2007 WL 1455869 (N.D.Cal. May 17, 2007). The County of Monterey refused to put the initiative on the ballot, arguing that failing to include a version
When the plaintiffs sought attorney‘s fees under
In awarding fees to the proponents of the English-only ballot initiative, the County of Monterey court necessarily adopted the neutral interpretation, because the plaintiffs unquestionably had not been the ones enforcing individual voting rights. Indeed, voting rights were irrelevant to the litigation until the County used the VRA as a justification for its refusal to put the referendum on the ballot. So the only court to have considered the issue adopted the neutral interpretation.
This is not to say that the neutral interpretation is perfect. One flaw is that it presents a difficult interpretive task: how should a court decide whether a particular action or proceeding was to enforce the voting guarantees of the relevant amendments without considering who filed the lawsuit and who is seeking attorney‘s fees? The best answer, as suggested by County of Monterey, is to label any action or proceeding in which at least one of the litigants is seeking to enforce the voting guarantees of the relevant amendments as an action or proceeding that triggers fee eligibility for the prevailing party.12 See id. At that point, the court could move on to an assessment of fee entitlement. That approach solves the administrability problem and is still consistent with the neutrally-written statutory text.
As the above analysis demonstrates, interpreting the phrase action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment presents a host of difficulties—some due to inartful statutory drafting, some due to D.C. Circuit opinions that, with the benefit of hindsight, appear not to have grappled with the full logical implications of their holdings. But this interpretive puzzle can be left for another day. As discussed below, even if this is the sort of action or proceeding in which Shelby County is eligible for attorney‘s fees, the Court, in its discretion, holds that Shelby County is not entitled to attorney‘s fees under the circumstances of this case.
III. Fee Entitlement: Is Shelby County Entitled To Attorney‘s Fees as a Matter of Discretion?
Even in the right sort of action or proceeding, no prevailing party is guaranteed a fee award under
To reach this conclusion, the Court will begin by exploring the Supreme Court and the D.C. Circuit case law adopting purposive interpretations of discretionary, textually neutral fee-shifting provisions—particularly, those found in federal civil rights statutes. Next, following the lead of this precedent, the Court will consider the purpose of
Ultimately, the Court finds that the purpose of
A. The Supreme Court and the D.C. Circuit have repeatedly used purposive considerations to cabin district court discretion in awarding attorney‘s fees.
Although the text of
The first example of the Supreme Court adding an interpretive gloss on statutory discretion to award attorney‘s fees came in 1968 (before the 1975 enactment of the
The Supreme Court reaffirmed this approach in 1973, with respect to an identically worded fee-shifting provision in the Emergency School Aid Act of 1972, under which plaintiffs had prevailed in litigation aimed at desegregating the public schools of Memphis, Tennessee. Northcross v. Bd. of Educ. of the Memphis City Schs., 412 U.S. 427, 427, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973). The Court, in a step that it would repeat in later cases, noted that the similarity of language in the statute and the fee-shifting provision in the Civil Rights Act was a strong indication that the two statutes should be interpreted pari passu. Id. at 428, 93 S.Ct. 2201. It then explained that plaintiffs in school cases are ‘private attorneys general’ vindicating national policy in the same sense as are plaintiffs in Title II actions. The enactment of both provisions was for the same purpose—‘to encourage individuals injured by racial discrimination to seek judicial relief.’ Id. (quoting Piggie Park, 390 U.S. at 402). For this reason, it held that prevailing plaintiffs ‘should ordinarily recover an attorney‘s fee unless special circumstances would render such an award unjust.’ Id. (quoting Piggie Park, 390 U.S. at 402).
In 1978, the Supreme Court, for the first time, had occasion to apply this methodology to a prevailing defendant in a civil rights case—that is, to a party that was opposing enforcement of the principles that the statute was designed to vindicate. In Christiansburg Garment Co. v. EEOC, an employer-defendant prevailed in a race discrimination suit under Title VII of the Civil Rights Act. 434 U.S. at 414, 98 S.Ct. 694. As the prevailing party in an action or proceeding under Title VII, the defendant sought attorney‘s fees. Id. at 414–15, 98 S.Ct. 694.
In rejecting the defendant‘s fee claim, the Supreme Court first described the set of statutes that had become subject to this purposive interpretive methodology:
Some of these statutes make fee awards mandatory for prevailing plaintiffs; others make awards permissive but limit them to certain parties, usually prevailing plaintiffs. But many of the statutes are more flexible, authorizing the award of attorney‘s fees to either plaintiffs or defendants, and entrusting the effectuation of the statutory policy to the discretion of the district courts. Section 706(k) of Title VII of the Civil Rights
Act of 1964 falls into this last category, providing as it does that a district court may in its discretion allow an attorney‘s fee to the prevailing party.
Id. at 415–16, 98 S.Ct. 694.
Next, the Supreme Court proceeded to outline the process by which the district courts should carry out this effectuation of the statutory policy in interpreting a discretionary fee-shifting provision. Id. It acknowledged candidly that the text of the statute itself provide[s] no indication whatever of the circumstances under which a plaintiff or a defendant should be entitled to attorney‘s fees, but then noted that a moment‘s reflection reveals that there are at least two strong equitable considerations counseling an attorney‘s fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant. Id. at 418, 98 S.Ct. 694. First, a Title VII plaintiff is the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority.’ Id. (quoting Piggie Park, 390 U.S. at 402). Second, when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. Id.
For these reasons, the Supreme Court insulated unsuccessful Title VII plaintiffs from most attorney‘s fee claims, holding that a district court may in its discretion award attorney‘s fees to a prevailing defendant in a Title VII case only if the plaintiff‘s action was frivolous, unreasonable, or without foundation. Id. at 421, 98 S.Ct. 694. The Court reasoned that if fees were too readily available to prevailing Title VII defendants, it would substantially add to the risks inherent in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of the provisions of Title VII. Id. at 422, 98 S.Ct. 694.
The Christiansburg interpretive approach was reaffirmed by the Supreme Court in the 1989 decision in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989). In Zipes, Justice Scalia‘s opinion for the Court opens with a strong endorsement of the general practice of purposive, judge-made tests to cabin district court discretion in awarding attorney‘s fees under the federal civil rights laws:
Although the text of [Title VII‘s fee-shifting] provision does not specify any limits upon the district courts’ discretion to allow or disallow fees, in a system of laws discretion is rarely without limits. In the case of [Title VII] and other federal fee-shifting statutes ..., we have found limits in the large objectives of the relevant Act, which embrace certain equitable considerations.
Id. at 758–59, 109 S.Ct. 2732 (quoting Christiansburg, 434 U.S. at 418) (internal citations omitted).
Zipes involved a fee request against a losing defendant-intervenor in a Title VII case. Following the lead of Christiansburg, the Supreme Court examined the role of an intervenor in a Title VII suit, pointing out that assessing fees against blameless intervenors ... is not essential to [the] purpose of Title VII‘s fee-shifting provision, which is to vindicate the national policy against wrongful discrimination by encouraging victims to make the wrongdoers pay at law—assuring that the incentive to such suits will not be reduced by the prospect of attorney‘s fees that consume the recovery. Id. at 761, 109 S.Ct. 2732. Furthermore, losing intervenors ... have not been found to have violated anyone‘s civil rights, and [a]warding attorney‘s fees against such an intervenor would further neither the general policy that wrongdoers make whole
In contrast to the purposive analysis it conducts when interpreting fee-shifting provisions in the civil rights laws, the Supreme Court has taken a slightly different approach when faced with fee-shifting provisions in purely economic statutes. In Fogerty v. Fantasy, Inc., 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994), the Court interpreted the fee-shifting provision in the Copyright Act. It ultimately held all prevailing parties under the Copyright Act should be treated equally—but in doing so, relied on the differences between a purely economic statute like the Copyright Act and the civil rights statutes it normally subjects to a purposive value judgment. The Supreme Court explained that in the civil rights context, impecunious ‘private attorney general’ plaintiffs can ill afford to litigate their claims against defendants with more resources. Id. at 524, 114 S.Ct. 1023. And despite the textually neutral fee-shifting provision in the Civil Rights Act, it justified the Christiansburg decision as follows: Congress sought to ... provide incentives for the bringing of meritorious lawsuits, by treating successful plaintiffs more favorably than successful defendants in terms of the award of attorney‘s fees. Id. Although the Supreme Court‘s use of the words plaintiff and defendant in this context seems a bit imprecise, see, e.g., Zipes, 491 U.S. at 761 (protecting defendant-intervenors from most fee requests based on the same purposive considerations), the Court reaffirmed its purposive methodology in interpreting textually neutral fee-shifting provisions in federal civil rights statutes.14
Medina County offers additional elaboration on how to apply the Supreme Court‘s purposive methodology in interpreting fee-shifting statutes—specifically,
Finally, arguably going one step further than the Supreme Court has, the D.C. Circuit has employed this purposive approach even in economic statutes outside of the civil rights context. See, e.g., Eddy, 59 F.3d at 204 (adopting a multi-factor
protect individual civil rights. Octane Fitness, a brief and unanimous decision, contains no hint that the Supreme Court intended to overrule or modify cases like Christiansburg and Piggie Park sub sileniio; indeed, both opinions are cited favorably. See Octane Fitness, 134 S.Ct. at 1758 (citing Christiansburg, 434 U.S. at 419, 98 S.Ct. 694; Piggie Park, 390 U.S. at 402 n. 4, 88 S.Ct. 964). Unless and until the Supreme Court or the D.C. Circuit suggests otherwise, this Court will continue to treat the Christiansburg line of cases as good law.
To summarize: Christiansburg teaches that even a neutrally-worded fee statute does not necessarily have an identical application to every prevailing party. Rather, when the statute establishes a flexible standard, a consideration of policy and congressional intent must guide the determination of the circumstances under which a particular party, or class of parties (such as plaintiffs or defendants), is entitled to fees. Dorn‘s Transp., Inc. v. Teamsters Pension Trust Fund of Phila. & Vicinity, 799 F.2d 45, 49 (3d Cir.1986). The Court will now apply the teachings of the Christiansburg line of cases to
B. The purpose of section 1973l(e) is to encourage private attorneys general to bring lawsuits vindicating individual voting rights.
To carry out the preferred approach of the Supreme Court and the D.C. Circuit in interpreting discretionary fee-shifting provisions in civil rights statutes, this Court must consider the purpose of the VRA‘s fee-shifting provision,
As confirmation of this common-sense understanding of the purpose of the provision, the legislative history of section[ ] 1973l(e) ... emphasizes over and over again the critical goal of enabling private citizens to serve as ‘private attorneys general’ in bringing suits to vindicate the civil rights laws. Donnell, 682 F.2d at 246. The 1975 Senate Committee Report discussed the private attorneys general rationale at length, and called on the judiciary to adopt similar standards as had already been adopted with respect to the
[
Section 1973l(e) ] allows a court, in its discretion, to award attorneys’ fees to a prevailing party in suits to enforce the voting guarantees of the Fourteenth and Fifteenth amendments, and statutes enacted under those amendments.... Such a provision is appropriate in voting rights cases because there, as in employment and public accommodations cases, and other civil rights cases, Congress depends heavily on private citizens to enforce the fundamental rights involved. Fee awards are a necessary means of enabling private citizens to vindicate these federal rights.... [P]rivate attorneys general should not be deterred from bringing meritorious actions to vindicate the fundamental rights here involved by the prospect of having to pay their opponent‘s counsel fees should they lose.
C. Shelby County must satisfy the Christiansburg standard to obtain a fee award.
With the well-settled purpose of
In most VRA lawsuits, an individual plaintiff, perhaps with the assistance of the Attorney General, is suing a state government entity for taking an action that violates the plaintiff‘s individual voting rights. These suits fall squarely within the wheelhouse of the VRA fee-shifting provision, so in such a case, a prevailing plaintiff ‘should ordinarily recover an attorney‘s fee unless special circumstances would render such an award unjust.’ Donnell, 682 F.2d at 245 (quoting Piggie Park, 390 U.S. at 402). Similarly, in such a typical case, [g]enerally, a defendant may not recover attorneys’ fees unless the court finds that the plaintiff‘s suit was frivolous, vexatious, or without foundation. Medina County, 683 F.2d at 439 (citing Christiansburg, 434 U.S. at 421-22).
But not all cases are typical, and sometimes, the plaintiff/defendant lineup is more complex—or is wholly reversed. In the words of the D.C. Circuit in Medina County, it is clear from the case law and the legislative history that when the procedural posture of a case places the party who seeks to vindicate rights guaranteed by the Constitution in the position of defendant, the restrictive Christiansburg Garment rule is not applicable. Id. at 440. By the same token, when the procedural posture of a case places the party who seeks to oppose enforcement of individual voting rights in the position of a plaintiff, the restrictive Christiansburg Garment rule is applicable, id. when that
In fact,
Cases from outside the D.C. Circuit also provide support, relying on this legislative history. See, e.g., King, 410 F.3d at 413 ([T]he legislative histor[y] of § 1973l(e) ... reflect[s] Congress’ expectation that, in some circumstances, defendants or defen-dant-intervenors would be prevailing parties entitled to attorneys’ fees.); League of United Latin American Citizens Council No. 4434 v. Clements, 923 F.2d 365, 368 n. 2 (5th Cir.1991) (en banc) (Given the Supreme Court‘s apparent rationale for applying different standards to plaintiffs and defendants, any such reclassification of a party‘s role must hinge upon whether the parties in question acted as private attorneys general within the scope of the statutes under which Congress provided fee entitlement.... For example, in section 5 declaratory judgment actions under the [VRA], the parties positioned as ‘defendants’ may actually be the parties charging civil rights violations and seeking to assert their civil rights.).
Finally, Christiansburg itself offers support. The Supreme Court in Christiansburg drew a distinction between the classic Title VII plaintiff—the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority,’ 434 U.S. at 418 (quoting Piggie Park, 390 U.S. at 402)—and a prevailing Title VII defendant. It pointed out that when a district court awards counsel fees to a prevailing plaintiff, it is awarding them against a violator of federal law. Id. Despite Shelby County‘s best efforts to argue the contrary, a fee award in this case would not run against a violator of federal law in the manner contemplated by Christiansburg. To be sure, the Constitution is federal law, and Supreme Court held in this case that Congress exceeded its con-
Although Shelby County v. Holder was in many ways a unique case, it was not entirely unprecedented; as in other VRA cases, the parties positioned as ‘defendants’ and defendant-intervenors were actually ... the parties charging civil rights violations and seeking to assert their civil rights. Clements, 923 F.2d at 368 n. 2. And Shelby County, the plaintiff, was not acting as a private attorney general seeking to vindicate individual voting rights. Instead, Shelby County was essentially the opposite of the chosen instrument of Congress to vindicate ‘a policy that Congress considered of the highest priority,’ Christiansburg, 434 U.S. at 418 (quoting Piggie Park, 390 U.S. at 402)—its position was openly hostile to Congress‘s policy choices, attacking them as unconstitutional.
True, those attacks were successful. But that does not mean that Congress would have wanted attorney‘s fees to be easily available to someone bringing such a challenge.16 And congressional intent governs here, even though, on the merits, the Supreme Court found that Congress had overreached in other, unrelated provisions of the statute. Shelby County pejoratively refers to such an inference about congressional preferences as impermissibly creating a judge-made ranking of rights—an approach it claims was outlawed by Justice Scalia‘s opinion in Zipes. See Pl.‘s Reply at 15 (quoting Zipes, 491 U.S. at 763 n. 4). But Shelby County ignores the rest of Justice Scalia‘s footnote, which ultimately (and candidly) acknowledges that [h]ere, as elsewhere, the judicial role is to reconcile competing rights that Congress has established and competing interests that it normally takes into account. Zipes, 491 U.S. at 763 n. 4 (emphasis added). The Court has done so here and, accordingly, will hold Shelby County to the Christiansburg standard, under which the Court, in its discretion, will award fees only if Shelby County can demonstrate that the United States or defendant-intervenors took positions that were frivolous, unreasonable, or without foundation. Christiansburg, 434 U.S. at 421.17
To its credit, Shelby County does not argue (or that the United States defen-dant-intervenors) took a position in this case that was frivolous, unreasonable, or without foundation. See Hr‘g Tr. at 20 (I don‘t think we claimed the government‘s conduct met the standard of Christiansburg. That‘s not our claim.). That concession was appropriate: this Court, two judges on the D.C. Circuit, and four Justices of the U.S. Supreme Court agreed with the position advanced by the Attorney General, and the challenged provisions of the VRA had been upheld in previous decisions of the Supreme Court. Hence, the Court will deny fees to Shelby County in its discretion,
CONCLUSION
For the reasons set forth above, the Court will deny Shelby County‘s motion for attorney‘s fees. A separate order accompanies this Memorandum Opinion.
JOHN D. BATES
UNITED STATES DISTRICT JUDGE