Brat v. Personhuballah

• Decision Date: 26 February 2018
• Docket Number: No. 17-1389,17-1389
• Citation: 883 F.3d 475
• Parties: David BRAT; Barbara Comstock ; Robert Wittman, Congressman; Bob Goodlatte, Congressman; Randy Forbes, Congressman; Morgan Griffith, Congressman; Scott Rigell, Congressman; Robert Hurt, Congressman, Intervenors/Defendants-Appellants, Eric Cantor, Congressman ; Frank R. Wolf, Congressman, Intervenors/Defendants, and Virginia State Board of Elections ; Kenneth Cuccinelli, II, Defendants, v. Gloria PERSONHUBALLAH, an individual; James Farkas, an individual, Plaintiffs-Appellees, James B. Alcorn; Clara Belle Wheeler; Singleton B. McAllister, Defendants-Appellees, and Dawn Curry Page, an individual, Plaintiff.
• Court: U.S. Court of Appeals — Fourth Circuit

883 F.3d 475

David BRAT; Barbara Comstock ; Robert Wittman, Congressman; Bob Goodlatte, Congressman; Randy Forbes, Congressman; Morgan Griffith, Congressman; Scott Rigell, Congressman; Robert Hurt, Congressman, Intervenors/Defendants-Appellants,

Eric Cantor, Congressman ; Frank R. Wolf, Congressman, Intervenors/Defendants,

and

Virginia State Board of Elections ; Kenneth Cuccinelli, II, Defendants,

v.Gloria PERSONHUBALLAH, an individual; James Farkas, an individual, Plaintiffs-Appellees,James B. Alcorn; Clara Belle Wheeler; Singleton B. McAllister, Defendants-Appellees,andDawn Curry Page, an individual, Plaintiff.

No. 17-1389

United States Court of Appeals, Fourth Circuit.

Argued: December 6, 2017

Decided: February 26, 2018

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.

Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.

Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Traxler and Judge Keenan joined.

NIEMEYER, Circuit Judge:

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 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e), when the intervening defendants were not charged with any wrongdoing and could not be held liable for the relief that the plaintiffs sought.

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 was convened under 28 U.S.C. § 2284(a) to determine the matter.

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 , ––– U.S. ––––, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015), and the district court, after considering Alabama , again concluded that the Third District was a racial gerrymander. Once again, 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 , ––– U.S. ––––, 136 S.Ct. 1732, 1736, 195 L.Ed.2d 37 (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, 109 S.Ct. 2732, 105 L.Ed.2d 639 (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 § 1988(b), should be made "against losing intervenors only where the intervenors’ action was frivolous, unreasonable, or without foundation." 491 U.S. at 761, 109 S.Ct. 2732. Because we conclude that Zipes is controlling, we vacate the district court’s March 3, 2017 order awarding attorneys fees and costs and remand to the district court for reconsideration of the plaintiffs’ petitions for fees in light of this opinion.

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 42 U.S.C. § 1983 against the Commonwealth,¹ challenging as unconstitutional the boundaries of the Third Congressional District, which lies in southwest Virginia and extends from Richmond to Norfolk, including Petersburg. They claimed that under H.B. 251, African Americans were "packed" into the district to remove their votes from neighboring districts and that the decision to do so was "driven primarily by race," in violation of the Equal Protection Clause. For relief, they sought a declaration that the Third District was unconstitutional and an injunction enjoining the Commonwealth from holding elections under the existing map. They also urged the court to take any actions necessary to draw new, constitutionally valid congressional districts.

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 28 U.S.C. § 1253.

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 , ––– U.S. ––––, 135 S.Ct. 1699, 191 L.Ed.2d 671 (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 Intervening 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.

Meanwhile, the Supreme Court expressed doubt that the Intervening Congressmen had standing to challenge the district court’s June 5, 2015 order because none of them resided in or represented the Third District. It directed the parties to submit supplemental briefing on the issue. In response, three of the ten Intervening Congressmen claimed that they had standing, and the Commonwealth agreed as to at least one of them. The Commonwealth, nonetheless, requested that the Court affirm the district court’s order on the merits. In a unanimous decision, however, the Supreme Court determined that none of the Intervening Congressmen had standing and dismissed the appeal. Personhuballah , 136 S.Ct. at 1736.

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 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e), and the district court granted the petitions, awarding the plaintiffs $779,189.39 in fees and...