State of Texas v. United States of America ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
STATE OF TEXAS, )
)
Plaintiff, )
)
v. )
)
UNITED STATES OF AMERICA, and )
JEFFERSON SESSIONS, in his official ) Civil Action No. 11-1303 (RMC)
capacity as Attorney General of the )
United States, )
)
Defendants, and )
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WENDY DAVIS, et al., )
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Defendant-Intervenors. )
)
MEMORANDUM OPINION
This motion for appellate attorney’s fees comes at the end of long and complex
litigation under the Voting Rights Act. As Texas appealed the decision of a three-judge court in
the United States District Court for the District of Columbia that certain of its 2011 redistricting
plans could not be approved, the Supreme Court decided that the provision of the Voting Rights
Act requiring Texas to obtain such approval was unconstitutional. Nonetheless, to the State’s
consternation, this Court granted attorney’s fees as “prevailing parties” to Intervenor-Defendants
who had challenged the new Texas district maps. Defendant-Intervenors now seek attorney’s
fees for their successful defense of the first fee award on appeal. The Court will grant in part and
deny in part their motion.
I. BACKGROUND
After the 2010 Census, the State of Texas enacted redistricting plans for the Texas
House of Representatives, the Texas Senate, and the United States House of Representatives to
reflect its growing population and new congressional seats. At that time, Texas was covered by
Section 5 of the Voting Rights Act of 1965, 52 U.S.C. § 10304(a), which required covered
jurisdictions seeking to change any voting procedure to obtain either administrative preclearance
from the Attorney General or judicial preclearance from a three-judge court in the United States
District Court for the District of Columbia. 52 U.S.C. § 10304(a). The purpose of preclearance
was to ensure that a proposed change “neither has the purpose nor will have the effect of denying
or abridging the right to vote on account of race or color,” 52 U.S.C. § 10304(a), or language
minority, id. § 10303.
The State of Texas sought a declaratory judgment that its proposed redistricting
plans had neither the purpose nor the effect of denying or abridging the right to vote on account
of race, color or language minority. The Federal Government opposed preclearance of the
redistricting maps for the U.S. House of Representatives and for the Texas State House of
Representatives but not the redistricting map for the Texas State Senate. Seven parties were
granted Defendant-Intervenor status, each of whom challenged aspects of all three maps as
individual voters, elected State senators or representatives, or civil rights advocacy groups.
After a two-week bench trial, the three-judge court determined that Texas had
acted with discriminatory purpose or effect and denied preclearance to all three redistricting
plans, in whole or in part. See Texas v. United States, 887 F. Supp. 2d 133, 138-39 (D.D.C.
2012). Texas immediately filed a petition for certiorari to the Supreme Court, which was
opposed by the Federal Government and Defendant-Intervenors. Before the Supreme Court
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addressed the three-judge court opinion in Texas v. United States, the Court invalidated Section 4
of the Voting Rights Act, which required Texas, among other political bodies, to submit to
preclearance. See Shelby County v. Holder, 133 S. Ct 2612 (2013). The Supreme Court then
vacated and remanded the decision in Texas v. United States to the three-judge district court
panel to decide whether the case was moot. Texas moved to dismiss all claims as moot in light
of Shelby County. The three-judge court agreed that the case was mooted both by Shelby County
and by the State’s adoption of superseding redistricting plans, and so it was dismissed. See
Mem. and Order [Dkt. 255].
The three-judge court then dissolved. See Order [Dkt. 263]. The case was
returned to the undersigned, who had served on the three-judge court and to whom the case was
originally assigned by random draw.
Three of the Defendant-Intervenors (hereinafter “Intervenors”) thereupon sought
reimbursement for costs and legal fees incurred in the litigation before the District Court. See
Davis Mot. [Dkt. 256], Gonzales Mot. [Dkt. 257], NAACP Mot. [Dkt. 258]. The Davis
Intervenors are Texas State senators and representatives from voting districts in the Fort Worth
area. The Gonzales Intervenors are a group of Hispanic and Black Texas voters. The Texas
State Conference of NAACP Branches is a civil rights advocacy group concerned with minority
voting rights in Texas.
Texas opposed in an Advisory, arguing that Intervenors were not prevailing
parties for purposes of attorney’s fees. See Advisory [Dkt. 259]. On June 18, 2014, this Court
granted Intervenors’ motion for attorney’s fees, after finding that they were prevailing parties
and that the Texas Advisory had waived most of the state’s rights to argue otherwise about fee
entitlement or amount. The D.C. Circuit affirmed. See Texas v. United States, 49 F. Supp. 3d 27
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(D.D.C. 2014), aff’d, 798 F.3d 1108 (D.C. Cir. 2015). When Texas appealed the D.C. Circuit
decision on fees, the Supreme Court denied certiorari. Texas v. Davis, 136 S. Ct. 981 (2016).
Intervenors subsequently filed the instant motion for attorney’s fees in the Circuit to recover fees
and costs incurred in defending the fee award before both the Circuit and the Supreme Court.
The D.C. Circuit remanded the motion because “[t]he motions and accompanying responses raise
fact questions about the appropriate rates and hours for appellate work done by intervenors’
counsel” that are best determined by the district court. D.C. Cir. Order 3/17/2015 [Dkt. 273].
The matter returned to the undersigned Judge.
II. LEGAL STANDARDS
Once a party has established that it is entitled to attorney’s fees, a court must
determine whether the fees sought are reasonable. In doing so, courts traditionally apply a three-
part analysis: “(1) determination of the number of hours reasonably exp[e]nded in litigation; (2)
determination of a reasonable hourly rate or ‘lodestar’;1 and (3) the use of multipliers as
merited.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1517 (D.C. Cir.
1988) (citing Blum v. Stenson, 465 U.S. 886 (1984)). To determine a reasonable hourly rate,
courts consider three elements: “(1) the attorney’s billing practices, (2) the attorney’s skill,
experience, and reputation and (3) the prevailing market rates in the relevant community.” Reed
v. District of Columbia, 843 F.3d 517, 521 (D.C. Cir. 2016) (internal quotation marks and
citation omitted).
1
The “lodestar” method, established by the Supreme Court in Hensley v. Eckerhart, 461 U.S.
424, 434 (1983), is determined by multiplying “the number of hours reasonably expended on the
litigation times a reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). It is the
approach followed by most federal courts in fee award disputes. See Gisbrecht v. Barnhart, 535
U.S. 789, 802 (2002).
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Parties seeking fee awards must offer evidence, in addition to the attorney’s own
affidavit, to demonstrate that the fees requested “are in line with those prevailing in the
community for similar services by lawyers of reasonably comparable skill, experience, and
reputation.” Covington v. District of Columbia, 57 F.3d 1101, 1108 (D.C. Cir. 1995) (quoting
Blum, 465 U.S. at 896 n. 11). Fee applications must “produce data concerning the prevailing
market rates in the relevant community for attorneys of reasonably comparable skill, experience,
and reputation.” Id.
In determining the reasonable number of hours expended by attorneys, there must
be a “good faith effort to exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary.” Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
III. ANALYSIS
Intervenors rely on the explicit provision in the Voting Rights Act awarding
attorney’s fees to prevailing parties who challenge a voting plan or procedure. See 42 U.S.C.
§ 1988(b). There is no longer any question but that Intervenors are prevailing parties and are
entitled to an award of reasonable attorney’s fees for their work before the D.C. Circuit and the
Supreme Court; that question was definitively settled by the D.C. Circuit in Texas v. United
States, 798 F.3d 1108 (D.C. Cir. 2015) (affirming the district court’s grant of attorney’s fees),
and the Supreme Court’s refusal to hear the Texas petition for certiorari. Texas v. Davis, 136 S.
Ct. 981 (2016).2 Texas challenges the hourly rates billed for certain counsel for the Davis
2
To clarify for the reader, the Court mentions Intervenors’ status as prevailing parties only
because the parties’ briefs on fees were submitted to the D.C. Circuit prior to the petition for
certiorari filed by Texas and its denial by the Supreme Court, which resolved the issue. At the
time its brief was filed, Texas still hoped for success and argued that Intervenors were not
entitled to fees, despite the D.C. Circuit decision to the contrary. Opp’n to Mot. For Attorney
Fees [Dkt. 281] at 2-3. On remand, the Court invited further briefing but no party thought it
necessary. See Court’s Minute Order 3/22/2016.
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Intervenors on both the appeal to the D.C. Circuit and their opposition to certiorari; and the
hourly rates for certain counsel for the Gonzales Intervenors for work on the appeal to the D.C.
Circuit. Texas “does not object to the requested hourly rates of the individuals representing the
NAACP Appellees.” Opp’n to Mot. for Attorney Fees [Dkt. 281] at 12; see also Opp’n to Supp.
Mot. for Attorney’s Fees [Dkt. 284] at 1.
In summary, Texas argues that the hourly rates for all counsel and support staff
for the Davis and Gonzales Intervenors should be limited to the Laffey Matrix3 for fees used by
the District of Columbia Office of the U.S. Attorney (USAO). In addition, Texas challenges the
number of hours billed for certain work by the Gonzales Intervenors.
All Intervenors contend that Texas waived any argument that the USAO Laffey
Matrix should be used by failing to raise the objection during the litigation over trial fees. In
general, under the law-of-the-case-doctrine, “a court involved in later phases of a lawsuit should
not re-open questions decided . . . by that court or a higher one in earlier phases.” Crocker v.
Peidmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995). This principle does not apply in the
current circumstances, in which the fee dispute involves appellate litigation, for which no
previous award has been made. See Murchison v. Inter-City Mortg. Corp. Profit Sharing &
Pension Plans, 503 F. Supp. 2d 184, 191 (D.D.C. 2007) (order regarding trial fees not law-of-
the-case for post-trial litigation); see also Salazar ex rel. Salazar v. District of Columbia, 809
F.3d 58, 63-64 (D.C. Cir. 2015) (fees in settlement order not law-of-the-case for fees for later
stage of litigation).
A. Hourly Rates for the Davis and Gonzales Intervenors
3
The Laffey Matrix is an attorney’s fee matrix developed in Laffey v. Nw. Airlines, Inc., 572 F.
Supp. 354, 371 (D.D.C. 1983). It is discussed in greater detail below.
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In determining the prevailing market rate, fee applicants may submit their own
survey of prevailing market rates or attorney’s fee matrices, which “provide a useful starting
point” in calculating the prevailing market rate. Covington, 57 F.3d at 1109. The Laffey Matrix
is the most commonly used fee matrix in determining fees for complex federal litigation in the
D.C. Circuit. It was developed to reflect prevailing rates for work done in 1981-1982 in Laffey v.
Nw. Airlines, Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other
grounds, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds, Save Our Cumberland
Mountains, Inc. v. Hodel, 857 F.2d 1516 (1988). The Laffey Matrix has since been updated
several times, leading to competing matrices, two of which are relevant to this case.
The first Laffey Matrix, known as the USAO Laffey Matrix, is maintained and
updated by the United States Attorney’s Office for the District of Columbia. See USAO Laffey
Matrix 2015-2017, available at https://www.justice.gov/usao-dc/file/889176/download. The
USAO Laffey Matrix adjusts the original 1980s rates to account for inflation by using the
Consumer Price Index for All Urban Consumers (CPI-U) of the United States Bureau of Labor
Statistics. The CPI-U measures prices across several commodities in a specific geographic area,
in this case, the Washington D.C. Metropolitan Area. The second Laffey Matrix, known as the
LSI Laffey Matrix, relies on the Legal Services Index of the Bureau of Labor Statistics, which
provides national legal rates adjusted for inflation, rather than local and generalized cost data.
See LSI Laffey Matrix, available at http://www.laffeymatrix.com/see.html.
Intervenors ask for fees that reflect their billing rates to private clients while
Texas argues that the USAO Matrix should govern. In response, Intervenors insist that if a
Laffey Matrix is to be applied, the more generous LSI Matrix — based on legal rates on a
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national basis, not general commodities in the local area (including much more than legal rates)
— is more appropriate.
Both Matrices have been approved in this District and the selection of one over
the other depends on whether fee applicants have shown that their preferred Matrix reflects
prevailing rates for comparable work. In Eley v. District of Columbia, 793 F.3d 97 (D.C. Cir.
2015), the D.C. Circuit vacated and remanded an award of attorney’s fees under the LSI Matrix
for litigation under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400 et
seq., because the fee applicants had failed to produce evidence that the LSI Matrix rates were in
line with prevailing rates for other IDEA litigation. Id. at 104-05. On remand, the District Court
found that “‘there is a submarket in which attorneys’ hourly fees are generally lower than the
rates in either of the Laffey Matrices.’” Eley v. District of Columbia, No. 11-cv-309 (BAH),
2016 WL 4435187, at *8 (D.D.C. Aug. 22, 2016) (quoting Salazar, 809 F.3d at 64). Nonetheless
that court awarded fees under the USAO Matrix because it found that IDEA litigation is complex
federal litigation.4 Id. Using reasoning similar to that in Eley, Heller v. District of Columbia,
832 F. Supp. 2d 32, 47-48 (D.D.C. 2011), relied on the USAO Matrix for a fee award to small
law firms conducting complex federal litigation because, it concluded, the LSI Matrix is based
on rates for the District of Columbia’s largest law firms and should not be used for smaller firms
that generally charge at lower rates.
In Salazar, the D.C. Circuit affirmed an award of attorney fees under the LSI
Matrix following litigation of a class action on behalf of Medicaid claimants under 42 U.S.C. §
4
Courts in this District have different opinions on whether IDEA litigation is sufficiently
complex to warrant the use of a Laffey matrix. Compare McAllister v. District of Columbia, 21
F. Supp. 3d 94, 108-10 (D.D.C. 2014) (no) and Merrick v. District of Columbia, 134 F. Supp. 3d
328, 339 (D.D.C. 2015) (yes).
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1983. Salazar, 809 F.3d 58. The Salazar court noted that there was no evidence that the fee
applicants were part of a submarket in which attorneys’ rates were generally lower, and therefore
analyzed prevailing rates for complex federal litigation in Washington, D.C. generally. Id. at 64.
Salazar reviewed copious evidence “regarding prevailing market rates for complex federal
litigation” including an affidavit of the economist who developed the LSI Laffey Matrix
explaining why it “is a better measure of the change in prices for legal services in Washington,
D.C. than the USAO update to the Laffey Matrix.” Id. In addition, Salazar cited evidence of
“billing rates tables demonstrating the difference between average national law firm rates and the
LSI update to the Laffey Matrix, as well as the difference between average national law firm
rates and the USAO update to the Laffey Matrix.” Id. at 65. Based on this evidence, Salazar
concluded that “[f]or the same experience level in the same time frame, the LSI updated rate was
closer to the average national law firm rate.” Id.
Intervenors request hourly rates based on the actual rates they charge private full-
paying clients. While “an attorney’s usual billing rate is presumptively the reasonable rate” this
is only so when the “rate is in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Kattan by Thomas v.
District of Columbia, 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum, 465 U.S. at 895 n. 11).
Intervenors have presented affidavits and biographies of their attorneys, time records, and the
National Law Journal Billing Survey of 2014. See Exhibits to Mot. for Attorney Fees [Dkt. 280].
This evidence does not satisfactorily establish that the billing rates for all of Intervenors’ counsel
are the prevailing market rates for similar services in Voting Rights Act litigation for attorneys
with comparable skills and reputation.
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There is no doubt that the litigation involved in this case was complex federal
litigation. Indeed, Texas does not dispute that fact. Before the Supreme Court, Plaintiffs relied
on experienced Supreme Court advocates and succeeded in persuading the Court to decline to
review Intervenors’ fee awards for trial-level work, as to which Texas had conceded much in its
Advisory. See Texas v. Davis, 136 S. Ct. 981 (denying certiorari); see also Texas v. United
States, 798 F.3d 1108 (affirming denial of fees).
Balancing all of these factors and case precedents, especially the skills and
reputations of the attorneys involved, the Court finds that the appropriate prevailing market rate
is provided by the LSI Laffey Matrix. In fact, Intervenors’ proposed rates are generally in line
with the LSI Matrix, and therefore the Court finds them to be reasonable, with three exceptions.
First, the Davis Intervenors seek a rate of $1,100 (2014) and $1,150 (2015) per hour for the work
of Paul Smith, a partner at Jenner & Block who has over 30 years of experience; the LSI Matrix
suggests top rates of $789 (2014) and $796 (2015) per hour for attorneys with more than 20
years of experience.5 Second, the Davis Intervenors seek an hourly rate of $650 in both 2014
and 2015 for J. Gerard Hebert, a nationally renowned subject-matter expert on the Voting Rights
Act with over 40 years of experience and who contributed substantially to the litigation, a rate
that is less than the LSI Matrix for an attorney with his years of experience. Third, the Davis
Intervenors seek $325 (2014) and $355 (2015) per hour for the work of Cheryl L. Olson, a non-
attorney at Jenner & Block, while the LSI Matrix rates for a non-attorney are $195 (2014) and
$196 (2015) per hour. Accordingly, the Court will award fees to the Davis Intervenors for the
5
The LSI Laffey Matrix provides rates for each year running from June 1 to May 31 of the
following year, rather than from January to December of the same year. The Court will use the
period from June 1, 2014 to May 31, 2015 for the 2014 rates and the period from June 1, 2015 to
May 31, 2016 for the 2015 rates.
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work of Mr. Paul and Mr. Hebert at the rates under the LSI Matrix for attorneys with over 20
years of experience in each year $789 (2014) and $796 (2015) and for the work of Ms. Olson at
the rates under the LSI Matrix for non-attorneys in each year $179 (2014) and $180 (2015).
B. Hours Billed to the Gonzales Intervenors
In order to satisfy the burden of justifying the number of hours billed, fee
applicants must provide supporting documentation “of sufficient detail and probative value to
enable a court to determine with a high degree of certainty that such hours were actually and
reasonably expended.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C. Cir. 2004)
(citations omitted). Such documentation can consist of “contemporaneous time records of hours
worked and rates claimed, plus a detailed description of the subject matter of the work with
supporting documents, if any.” In re Donovan, 877 F.2d 982, 994 (D.C. Cir. 1989). The fact
that Defendant-Intervenors were prevailing parties for the purposes of this fee application “may
say little about whether the expenditure of counsel’s time was reasonable in relation to the
success achieved.” Hensley, 461 U.S. at 436. As Hensley noted, “[c]ases may be overstaffed,
and the skill and experience of lawyers vary widely” and therefore “counsel for the prevailing
party should make a good faith effort to exclude from a fee request hours that are excessive,
redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to
exclude such hours from his fee submission.” Id. at 434.
The Gonzales Intervenors request attorneys’ fees for 96.6 total hours. Mot. for
Attorney Fees at 7. Texas objects to certain hours billed to the Gonzales Intervenors for three
filings. Opp’n to Mot. for Attorney Fees at 13-14. First, Texas objects to 7.6 hours in attorney
fees for preparing a motion for extension of time that was never filed to respond to the State’s
motion for summary reversal. Id. at 14-15. Second, Texas objects to 48.2 attorney hours and 2.1
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staff hours for work on the Gonzales Intervenors’ response to the State’s motion for summary
reversal. Texas argues that these Intervenors largely adopted the Davis Intervenors’ brief and
that their attorneys’ work was duplicative and unnecessary. Id. at 15-16. Third, Texas
challenges 30.5 hours billed for work on the Intervenors’ joint brief before the D.C. Circuit on
the merits. Texas argues that the Davis Intervenors billed 100 hours for the same brief and the
attorney hours billed to the Gonzales Intervenors are duplicative and unnecessary. Id. at 16-17.
Conscious of the Supreme Court’s words that “trial courts need not, and indeed
should not, become green-eyeshade accountants,” Fox v. Vice, 563 U.S. 826, 383 (2011), and
bearing in mind that the “essential goal in shifting fees . . . is to do rough justice, not to achieve
auditing perfection,” id., the Court finds that the hours billed on behalf of the Gonzales
Intervenors in opposing the Texas motion for summary reversal before the D.C. Circuit and
attorney work on the joint brief on the merits are reasonable. The question of whether a single
judge court had the authority to issue a fee award was not trivial and the hours expended were
not unreasonable. Similarly, the Gonzales Intervenors’ attorneys’ role in drafting portions of the
merits brief in the D.C. Circuit is legitimate time spent in this litigation. On the other hand, the
Court finds that the 7.6 hours billed for preparing a motion for extension of time that was never
filed were unnecessary, did not reasonably add to the litigants’ success, and would not have been
billed to a private client who carefully checks its fee statements. The attorney fees sought for
these hours by the Gonzales Intervenors hours will not be awarded.
IV. CONCLUSION
For the foregoing reasons, the Court will award fees to the Davis Intervenors for
the work of attorneys Paul Smith and J. Gerard Hebert at the rates consistent with the LSI Laffey
Matrix of $789 (2014) and $796 (2015) per hour. The Court will award fees to the Davis
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Intervenors for the work of non-attorney Cheryl L. Olson at a rate consistent for non-attorneys
under the LSI Laffey Matrix of $179 (2014) and $180 (2015) per hour. The Court will reduce the
fee award to the Gonzales Intervenors by 7.6 hours for work done on a motion for extension of
time that was never filed. The remaining hours and rates requested by Intervenors are reasonable
and shall be granted. A memorializing order accompanies this opinion.
Date: March 30, 2017
/s/
ROSEMARY M. COLLYER
United States District Judge
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