Leroy v. City of Houston

• Decision Date: 12 November 1987
• Docket Number: No. 86-2719,86-2719
• Citation: 831 F.2d 576
• Parties: Moses LEROY, et al., Plaintiffs-Appellees, v. CITY OF HOUSTON, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 576

831 F.2d 576

Moses LEROY, et al., Plaintiffs-Appellees, v. CITY OF HOUSTON, et al., Defendants-Appellants.

No. 86-2719.

United States Court of Appeals,

Fifth Circuit.

Nov. 12, 1987.

Rehearing and Rehearing En Banc Denied Dec. 28, 1987.

John E. Fisher, Robert J. Collins, Houston, Tex., for City of Houston, et al.

Jessica Dunsay Silver, George Schneider, Attys., U.S. Dept. of Justice, Civ. Rights Div., Wm. Bradford Reynolds, Washington, D.C., for amicus curiae, U.S George Korbel, L.A. Greene, Jr., Craig A. Washington, Houston, Tex., Sidney J. Braquet, Jessie Bottello, San Antonio, Tex., Moses Leroy, et al.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG and JONES ^*, Circuit Judges.

EDITH H. JONES, Circuit Judge:

The district court awarded attorneys' fees and costs exceeding $1,000,000 to plaintiffs, who it found "prevailed" in three separate actions and administrative proceedings to enforce the Voting Rights Act, 42 U.S.C. Sec. 1973 l et seq. against the City of Houston. We disagree with significant portions of the district court's legal analysis, and consequently we REVERSE and REMAND.

I.

The skirmish over attorneys' fees culminates a complex, protracted and in many ways unique battle between the protagonists in this litigation. In December, 1973, the plaintiffs-appellees, black and hispanic voters in Houston, Texas, filed suit alleging that their votes were unconstitutionally diluted by the at-large method of electing the Houston City Council. Greater Houston Civic Council v. Mann, No. H-73-1650 (S.D.Tex.) (Mann ).

Two years later, before Mann had come to trial, the same attorneys, representing the same and similar plaintiffs, filed a second lawsuit. In that action, they sought to enjoin a city election in which voters from several newly annexed areas would be participating, because the annexations had not been submitted for preclearance through the Department of Justice under Sec. 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c. ¹ Leroy v. City of Houston, No. H-75-1731 (S.D.Tex., Oct. 1975) (Leroy I ). By the time the complaint in Leroy I was served on the City, it had submitted the annexations to the U.S. Attorney General for review under section 5. A three-judge court denied the requested preliminary injunction, the annexations were subsequently precleared by the Attorney General, and Leroy I was dismissed in 1978. Attorneys' fees requested by the plaintiffs were denied by the three-judge court. Leroy I was dismissed with prejudice, costs being taxed against the Plaintiffs, and no appeal followed.

In 1976, Mann went to trial for five and one-half weeks. The following year the district court entered judgment for the defendants, holding that the at-large system did not dilute minority voting strength in Houston. Plaintiffs appealed, and in August, 1978, the Attorney General appeared as amicus curiae on plaintiffs' behalf, urging this Court to vacate the district court's decision.

The City continued to expand through annexations in 1977, but by November 1978, it had not submitted these additional accretions of territory for Justice Department review under section 5. A special bond election was set in the expanded city for January 1979. The plaintiffs, having been denied leave to amend their complaint in Leroy I, filed a new complaint seeking to enjoin the annexations and further elections pending preclearance. Leroy v. City of Houston, No. H-78-2174 (S.D.Tex., Nov. 1978) ("Leroy II "). The Attorney General sued the City for the same purpose, and the two cases were consolidated on December 15, 1978. The City assured the three-judge court that the annexations would be submitted and no elections would be held until preclearance was obtained. Accordingly, on December 28, 1978, the court denied motions filed by the Attorney General and the private plaintiffs for a preliminary injunction.

The City submitted both its 1977 and 1978 annexations for section 5 review by the Justice Department. The Department of Justice communicated with the individual plaintiffs and their attorneys who urged the Attorney General to object to the annexations in question. In June, 1979, the Attorney General did object to 14 of the annexations which he found diluted minority voting strength in the context of the city's at-large voting system. Nevertheless the Attorney General pre-cleared the holding of a referendum in the expanded city for the purpose of adopting a mixed single-member and at-large voting plan. ² The voters approved the referendum, and in September, 1979, the Attorney General precleared the districting based on the new plan and withdrew his objection to the annexations.

The parties in Mann thereupon informed this Court that the appeal was moot. In December 1979, this Court remanded to the district court for consideration of attorneys' fees. The issue of attorneys' fees languished in the district court until late 1982. Following extensive proceedings, including an aborted attempt by the City to recuse the district judge and an eight-day trial, the district court awarded fees, as requested by the plaintiffs, for their pursuit of litigation in Mann, Leroy I, Leroy II, and the Attorney General's administrative Section 5 review process.

The City of Houston appeals both the legal basis and amount of the award, and the Justice Department appears as amicus curiae on the former issues.

II.

The "prevailing party" in a Voting Rights Act lawsuit is entitled to recover his attorney's fees. 42 U.S.C. Sec. 1973l (e). ³ If the plaintiff prevails because judgment is rendered in his favor, a successful claim for fees is a foregone conclusion. Questions arise, however, when essential victory is obtained by other means than judgment following trial. Nevertheless, "all of the circuit courts have consistently held ... that a plaintiff may also prevail for Sec. 1988 ⁴ purposes when the case terminates in his favor by settlement, or when the defendant voluntarily undertakes action that results in accomplishment of the plaintiff's goal even though it moots the case." Hennigan v. Ouachita Parish School Board, 749 F.2d 1148, 1151 (5th Cir.1985). In such a case, the plaintiff must identify the goal that he sought to achieve in bringing his action. When that goal has been achieved by the defendant's conduct apart from the compulsion of court order, the plaintiff must then establish that the lawsuit caused the defendant to act. Hennigan is instructive:

To demonstrate this causal connection, the plaintiff must demonstrate that his suit was 'a substantial factor or a significant catalyst in motivating the defendants to end their unconstitutional behavior.' (citations omitted). This means more, however, than merely showing that the event occurred after suit was filed. Here, as elsewhere in the law, propter hoc must be distinguished from post hoc. The inquiry has been described as 'an intensely factual, pragmatic one,' (citations omitted) and courts should carefully consider the chronology of events in order to assess the provocative effect of the plaintiffs' lawsuit. (citations omitted).

Hennigan, 749 F.2d at 1152. See also Garcia v. Guerra, 744 F.2d 1159, 1162 (5th Cir.1984), cert. denied, 471 U.S. 1065, 105 S.Ct. 2139, 85 L.Ed.2d 497, 53 U.S.L.W. 3776 (1985); Williams v. Leatherbury, 672 F.2d 549, 551 (5th Cir.1982); Robinson v. Kimbrough, 652 F.2d 458, 466 (5th Cir.1981).

That plaintiffs eventually obtained the objective of their litigation is not seriously disputed. Mann sought to revise the election of city council members from an at-large system to that of single member districts. In 1979, the City instituted the mixed plan previously described. The City also agreed that in the course of future annexation activity, any necessary expansion of city council would continue to protect minority representation. ⁵ The substantial questions for prevailing party purposes are (1) whether plaintiffs' litigation was a significant catalyst to the defendants to revise city council districts, and (2) if so, the extent to which all three of plaintiffs' lawsuits plus the participation in Justice Department administrative proceedings are compensable.

A. Catalytic Effect

The district court found as a fact that the plaintiffs' litigation was a significant catalyst to the city's adoption of single-member districts. This finding is not clearly erroneous. Fed.R.Civ.P. 52(a). "[T]he court of appeals may not reverse, ... even though convinced that had it been sitting as the trier of fact it would have weighed the evidence differently. Where there are two permissible views of the evidence, the fact finder's choice between them cannot be clearly erroneous." Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1512, 84 L.Ed.2d 518 (1985).

The City objects that the change to single member districts was motivated principally by the increasingly unfavorable reaction of the Department of Justice to its vigorous annexation policy. In particular, the City contends that the Justice Department, while agreeing to preclear annexations of majority-white areas in 1977, foreshadowed future resistance to that policy if it were unaccompanied by protection for minority rights by measures like single member districts. The City urges that the imperatives of expanding the municipal tax base via annexation, combined with the Justice Department reaction, more powerfully motivated the City than did the litigation. This charge must fail. First, it quarrels only with the district court's assessment of the facts, which we cannot lightly disturb. Second, it misperceives as the plaintiffs' burden the duty to prove that the litigation was the only causative factor in the defendants' conduct. This is not so. The "substantial factor" or "significant catalyst" test does not require such exclusivity. Other events may have contributed to the City's ultimate acquiescence in the mixed district plan, but the district...