Personhuballah v. Alcorn

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation239 F.Supp.3d 929
Decision Date03 March 2017
Docket NumberCivil No. 3:13–cv–678
Parties Gloria PERSONHUBALLAH, et al., Plaintiffs, v. James B. ALCORN, et al., Defendants.

239 F.Supp.3d 929

Gloria PERSONHUBALLAH, et al., Plaintiffs,
James B. ALCORN, et al., Defendants.

Civil No. 3:13–cv–678

United States District Court, E.D. Virginia, Richmond Division.

Signed March 3, 2017

239 F.Supp.3d 932

John M. Devaney, Esquire, Kevin Hamilton, Esquire, John K. Roche, Esquire, Perkins Coie LLP, Seattle, WA, Attorneys for Plaintiffs.

Stuart A. Raphael, Esquire, Trevor S. Cox, Esquire, Office of the Attorney General,

239 F.Supp.3d 933

Richmond, VA, Attorneys for Defendants.

Jonathan A. Berry, Esquire, Michael A. Carvin, Esquire, Mark R. Lentz, Esquire, Jones Day, Washington, DC, Attorneys for Intervenor–Defendants.

Before DIAZ, Circuit Judge, O'GRADY, District Judge, and PAYNE, Senior District Judge.


O'GRADY, District Judge:

This matter comes before the court on Plaintiffs' Fourth Supplemental Motion for Attorney's Fees. Plaintiffs prevailed at trial, on remand, and before the United States Supreme Court on their claim that Virginia's Third Congressional District, as drawn in the 2012 congressional redistricting plan, constituted a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. As the prevailing party, Plaintiffs are entitled to costs and attorney's fees. We awarded Plaintiffs $779,189.39 following the first entry of judgment, but stayed our final order on that motion. Plaintiffs now ask the court to reinstate the earlier fee award of $779,189.39 and to enter an additional award of $718,189.25 against Defendants and Intervenor–Defendants. For the reasons that follow, Plaintiffs' motion is granted in part and denied in part.


Plaintiffs sued the Chairman, Vice–Chair, and Secretary of the Virginia State Board of Elections challenging the constitutionality of Virginia's Third Congressional District as drawn by the General Assembly in its 2012 districting plan.2 Plaintiffs sought declaratory relief and a permanent injunction enjoining the Commonwealth from holding elections under the 2012 plan. Soon after the complaint was filed, Virginia Congressmen Eric Cantor, Robert J. Wittman, Bob Goodlatte, Frank Wolf, Randy J. Forbes, Morgan Griffith, Scott Rigell, and Robert Hurt intervened as defendants. Their entry into the litigation was unopposed by Plaintiffs and the named Defendants.

Following a bench trial, we held that the Third Congressional District was an unconstitutional racial gerrymander in violation of the Fourteenth Amendment's Equal Protection Clause and thereafter enjoined the Commonwealth "from conducting any elections subsequent to 2014 for the office of United States Representative until a new redistricting plan is adopted." As the prevailing party, Plaintiffs timely moved for fees and costs pursuant to 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e). We entered an award of $779,189.39 against Defendants, but granted Defendants' request to stay enforcement during the pendency of the appeals process.

Intervenor–Defendants appealed to the Supreme Court. Defendants did not join in

239 F.Supp.3d 934

the appeal, taking the position that Intervenors could not prevail under the deferential standard of review governing factual findings. The Supreme Court vacated the judgment and remanded to us for further consideration in light of Alabama Legislative Black Caucus v. Alabama , ––– U.S. ––––, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015).

Following the remand order, Virginia Representatives Barbara Comstock and David Brat moved to intervene as defendants. Plaintiffs opposed the motion on the ground that Representatives Comstock and Brat, and indeed all Intervenor–Defendants, lacked standing following Defendants' decision to no longer defend the plan. We granted the motion over Plaintiffs' opposition.

Pursuant to the Supreme Court's instruction, we ordered all parties to submit briefing on the effect of Alabama. While Intervenor–Defendants took the position that Alabama "unequivocally confirm[ed]" the error in our first decision, Defendants aligned with Plaintiffs, arguing that "Alabama confirmed the legal grounds on which the Court based its decision." On reconsideration, we again concluded that the Third Congressional District was unconstitutional and again enjoined the Commonwealth from conducting elections "until a new redistricting plan [was] adopted."

Thereafter, Plaintiffs filed a third supplemental motion for attorney's fees, seeking an award of $73,540.50 against Defendants and Intervenor–Defendants for the fees incurred on remand. Because Intervenor–Defendants had again appealed to the Supreme Court, we denied the motion without prejudice pending the outcome of the appeal. As before, Defendants did not join in the appeal and filed a brief taking the position that the Court should affirm.

While the merits appeal was pending before the Supreme Court, we turned to the unwelcome task of fashioning a remedial redistricting plan. We instructed all parties and all interested nonparties to submit proposed remedial plans. Plaintiffs and Intervenor–Defendants submitted plans for consideration. Defendants did not. To assist in crafting a remedy, we appointed Dr. Bernard Grofman to serve as special master. Following a round of briefing and a hearing, we adopted one of Dr. Grofman's recommended plans—what became known as Congressional Plan Modification 16. Over Intervenor–Defendants' objection, we declined to stay implementation of the remedial plan pending resolution of the merits appeal before the Supreme Court. Intervenor–Defendants' effort to obtain a stay from the Supreme Court was also unsuccessful. Wittman v. Personhuballah , ––– U.S. ––––, 136 S.Ct. 998, 194 L.Ed.2d 16 (2016).

In a unanimous decision, the Supreme Court ruled that Intervenor–Defendants were without standing and dismissed the second merits appeal. Following the mandate, Plaintiffs timely filed a fourth supplemental fee petition, to which we now turn.


Plaintiffs ask the court to do three things. First, Plaintiffs ask that we reinstate the fee award of $779,189.39 entered after the first entry of judgment in their favor. Second, Plaintiffs renew their third supplemental motion for $73,540.50 in fees incurred on remand. Finally, Plaintiffs request a final supplemental award of $644,648.75 corresponding to their work performed during both the remedial phase of the litigation and the second appeal to the Supreme Court. In response, Defendants and Intervenor–Defendants challenge the reasonableness of the fees requested and dispute the allocation, if any, of the fee award between them.

239 F.Supp.3d 935

We begin by addressing the issue of intervenor fee liability. Next, we set forth the general legal framework for fee awards. We then grant Plaintiffs' unopposed request to reinstate the first fee award. Finally, we address the specific objections raised by Defendants and Intervenor–Defendants to the reasonableness of the fees sought by Plaintiffs in their third and fourth supplemental petitions. After considering these arguments, evaluating the reasonableness of each fee petition, and calculating Plaintiffs' costs, we conclude by finding that Plaintiffs are entitled to a total award of $1,346,571.74.

A. Intervenor Fee Liability

This case raises an issue of first impression in this Circuit. Namely, under what circumstances can an intervenor be held liable for a plaintiffs attorney's fees under 42 U.S.C. § 1988 ? The answer turns on whether this case is controlled by Independent Federation of Flight Attendants v. Zipes , 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989), or whether it is instead guided by the cases that have distinguished Zipes in the 27 years since it was decided. After reviewing the relevant caselaw, we agree with the reasoning of the Third, Seventh, and Eleventh Circuits, which have all distinguished Zipes on similar facts. As such, we hold that Intervenors are liable for attorney's fees incurred after April 13, 2015, the date on which Defendants formally abandoned their defense of Virginia's Third Congressional District and left Intervenors as the only functional defendants in the case. See generally Defs.' Opening Br. Regarding the Legal Effect of Alabama Legislative Black Caucus v. Alabama at 3, Dkt. No. 145.

1. Zipes and Subsequent Caselaw

Zipes was a case in which female flight attendants of Trans World Airlines filed a class action against the airline alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964. Nearly a decade after the suit commenced, the parties entered into a settlement agreement. After the settlement, a union, the Independent Federation of Flight Attendants, intervened to oppose the settlement and defend the seniority rights of flight attendants affected by the agreement but who were not members of the class. The plaintiffs ultimately prevailed against the union's challenge in the Supreme Court and sought to recover fees from the union under Title VII's fee-shifting provision.3 The Seventh...

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