Shelby Cnty. v. Holder

• Decision Date: 28 May 2014
• Docket Number: Civil Action No. 10–651 JDB
• Citation: 43 F.Supp.3d 47
• Court: U.S. District Court — District of Columbia
• Parties: 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.

43 F.Supp.3d 47

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

43 F.Supp.3d 50

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., Samuel Spital, Squire, Sanders & Dempsey, L.L.P., Daniel T. Stabile, David Cooper, John M. Nonna, Dewey & Leboeuf LLP, New York, NY, Nancy Abudu, American Civil Liberties Union Foundation Inc., Atlanta, GA, for Defendant–Intervenors.

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 42 U.S.C. § 1973l (e), a provision of the Voting Rights Act (“VRA”) that permits an award of reasonable attorney's fees, in a district court's discretion, to the prevailing party in “any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment.” The United States and defendant–intervenors oppose the requested fee award. Both Shelby County's fee petition and section 1973l (e) present a series of interpretive challenges, for which there is often little or no binding precedent. But ultimately, for the reasons set forth below, the Court will deny Shelby County's motion for attorney's fees. Shelby County's attorneys won an impressive victory before the U.S. Supreme Court. But as is true in most litigation, that victory came at a price. Shelby County and its attorneys, not the American taxpayer, must foot the bill.

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

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Section 4(b) created a coverage formula that “applied that requirement only to some States.” Shelby Cnty., Ala. v. Holder, ––– U.S. ––––, 133 S.Ct. 2612, 2618, 186 L.Ed.2d 651 (2013). Shelby County alleged that Section 4(b)'s coverage formula and Section 5's preclearance obligation for covered jurisdictions violated the principle of “equal sovereignty” embodied in the Tenth Amendment and Article IV of the United States Constitution, and that it exceeded Congress's enforcement authority under the Fourteenth and Fifteenth Amendments. See Compl. [ECF No. 1] ¶¶ 36–43. Shelby County included a request for “reasonable attorneys' fees and costs” in the prayer for relief in its complaint. Id. ¶ 44(c).

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 “remain[ed] 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, 129 S.Ct. 2504 ). 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

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Federal Rules. See Fed. R. Civ. P. 54(d)(2)(B)(i). Shelby County asked for $2,000,000 in fees and $10,000 in costs. Shortly thereafter, the parties—acknowledging that Shelby County's motion “appears to present a legal issue of first impression”—filed a joint motion to bifurcate the issues of fee entitlement (that is, whether Shelby County is entitled to any attorney's fees) and fee amount (that is, assuming Shelby County is entitled to a fee award, what the proper size of that fee award is). Joint Mot. for Bifurcation [ECF No. 96]. This Court granted the motion, delaying resolution of the “fee amount” question until after resolution of the “fee entitlement” issue. See Nov. 5, 2013 Order [ECF No. 98]. The United States opposed Shelby County's fee request, arguing (1) that sovereign immunity barred the claim, (2) that this was not the sort of “action or proceeding” in which the VRA authorized a fee award, and (3) that even if it were, Shelby County was not entitled to a fee award. Defendant-intervenors mostly agreed with the arguments advanced by the United States. After full briefing, the Court held a motions hearing on February 14, 2014.

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.

42 U.S.C. § 1973l (e).

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 “[j]urisdiction 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...