Bethune-Hill v. Va. State Bd. of Elections, Civil Action No. 3:14cv852

GOLDEN BETHUNE-HILL, et al., Plaintiffs, v. VIRGINIA STATE BOARD OF ELECTIONS, et al., Defendants.

Civil Action No. 3:14cv852

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

September 17, 2020

MEMORANDUM OPINION

BARBARA MILANO KEENAN, Circuit Judge:

The issue presently before the Court is the plaintiffs' Revised Second Motion for Attorneys' Fees and Litigation Expenses. Dkt. No. 402. The plaintiffs seek reimbursement for their attorneys' fees and expenses as the prevailing parties in this case, pursuant to 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e). After more than five years of litigation, including two trials and two appeals to the United States Supreme Court, the plaintiffs assert that they have incurred more than $4 million in attorneys' fees, as well as nearly $500,000 in litigation expenses. The plaintiffs also filed a Bill of Costs, claiming taxable costs in the amount of $223,832.06, pursuant to 28 U.S.C. § 1920. Dkt. No. 388.

Upon our review, we conclude that the intervenors, the Virginia House of Delegates and the former Speaker of the House, were "innocent" intervenors within the meaning of Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), and thus may not be held liable for a portion of the plaintiffs' fee award. We also conclude that the fees and expenses that may be charged against the state defendants are reasonable and recoverable under Sections 1988, 10310(e), and 1920, with the exceptions described below. Accordingly, we hold that the state defendants are responsible for the recoverable portion of the plaintiffs' fees, expenses, and costs, totaling $4,159,609.20.

I.

The underlying facts and procedural history of this case are set forth in detail in our liability and remedial-phase opinions, Bethune-Hill v. Virginia State Board of Elections, 326 F. Supp. 3d 128 (E.D. Va. 2018) (Bethune II), and Bethune-Hill v. Virginia State Board of Elections, 368 F. Supp. 3d 872 (E.D. Va. 2019) (Bethune III). We restate here only those facts relevant to the present motion for fees.

The plaintiffs, twelve Virginia registered voters, filed their complaint in December 2014, naming the Virginia State Board of Elections, the Virginia Department of Elections, and several officials of those agencies as defendants (the state defendants). Compl. ¶¶ 7-22. The state defendants are responsible for regulating and implementing Virginia's elections. Compl. ¶¶ 19-22. The plaintiffs claimed that the Virginia General Assembly drew twelve House of Delegates districts (the challenged districts) primarily on the basis of race during the 2011 redistricting cycle, in violation of the Equal Protection Clause of the Fourteenth Amendment. Bethune III, 368 F. Supp. 3d at 874; Compl. ¶¶ 103-08.

In January 2015, the Virginia House of Delegates and then-Speaker of the House, William J. Howell (collectively, the intervenors), filed a motion to intervene in this action.Dkt. No. 13. The intervenors asserted that they were the "parties that drew and enacted the redistricting plan at issue," id. at 2, noting that the state defendants "had no involvement in the enactment of the challenged plan" and had no "particular interest in defending the validity of the plan," id. at 4. The intervenors further acknowledged that they would be affected by any order of the Court requiring that the challenged districts be redrawn. Id. The plaintiffs did not object to the requested intervention, and we granted the motion to intervene in February 2015. Dkt. Nos. 22, 26. Immediately after entering the case, the intervenors assumed primary responsibility for defending the challenged redistricting plan.

After a trial that occurred in July 2015, we held that the legislature had not violated the Equal Protection Clause in drawing the twelve challenged districts. Bethune-Hill v. Va. State Bd. of Elections, 141 F. Supp. 3d 505 (E.D. Va. 2015) (Bethune I). The plaintiffs appealed, and the Supreme Court reversed our judgment with respect to eleven of the districts, concluding that we had applied the wrong standard for racial predominance. Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct. 788, 797-99 (2017). The Court affirmed our determination that the composition of the twelfth district satisfied constitutional requirements and remanded the remainder of the case for our reconsideration. Id. at 801-02.

On remand, we instructed the parties to submit briefs on the question of whether we should reevaluate the issue of racial predominance based on the existing factual record or reopen the record to consider additional evidence. Dkt. No. 136. The plaintiffs argued that additional evidence was not necessary and urged us to issue a revised opinion based on thecurrent record. Dkt. No. 153 at 2, 5, 11. In contrast, the intervenors sought to reopen the record, including to present new expert witness testimony. Dkt. No. 152 at 1-11. After considering these submissions, we held a second trial in October 2017, at which both the plaintiffs and the intervenors presented substantial additional evidence. Bethune III, 368 F. Supp. 3d at 875. As they did during the first trial, the intervenors again assumed responsibility for defending the plan, and the state defendants offered only minimal argument and no evidence of their own.

We issued our second liability opinion in June 2018. Bethune II, 326 F. Supp. 3d 128. We concluded that the legislature had used race as the predominant factor in constructing the eleven remaining challenged districts, and that this use of race was not justified by a compelling state interest. Id. at 137. In reaching this conclusion, we identified numerous instances in which members of the House of Delegates had altered district boundaries for racial reasons, ultimately concluding that "the legislature had shifted substantial groups of voters in and out of those districts primarily on the basis of race, in derogation of traditional districting criteria." Bethune III, 368 F. Supp. 3d at 875 (citing Bethune II, 326 F. Supp. 3d at 146, 155-72, 174). We instructed the General Assembly to redraw the districts by a specified date to remedy the constitutional deficiencies. Bethune II, 326 F. Supp. 3d at 181.

On July 6, 2018, the intervenors filed a notice of appeal to the Supreme Court. Dkt. No. 236. However, on July 19, 2018, the state defendants notified this Court that "continued litigation would not be in the best interest of the Commonwealth or its citizens,"and, thus, represented that "an appeal to the United States Supreme Court [wa]s . . . unwarranted." Dkt. No. 246 at 1. The state defendants asserted that the Virginia Attorney General had the exclusive authority to represent the state and that, therefore, the intervenors lacked standing to appeal our judgment to the Supreme Court. Id. at 2, 7. Despite the state defendants' decision to cease defending the plan, the intervenors continued to pursue their appeal of our liability decision.

While the intervenors' appeal was pending, we continued with the remedial phase of this litigation. Because the General Assembly had failed to pass a remedial plan by our Court-imposed deadline, we appointed a special master to assist us in redrawing the map for the House of Delegates districts. See Bethune III, 368 F. Supp. at 875. In February 2019, after considering numerous proposals presented by the parties, the special master, and the interested non-parties, we approved one of the plans proposed by the special master. See id. at 876. Although the state defendants once again declined to appeal, the intervenors nevertheless appealed our remedial decision to the Supreme Court. Dkt. No. 363.

In June 2019, the Supreme Court dismissed the intervenors' appeal of our liability decision for lack of jurisdiction. See Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019). The Court concluded that the intervenors lacked standing to appeal, because (1) Virginia law vested exclusive authority in the attorney general to represent the state and the attorney general had not delegated this responsibility to the intervenors, id. at 1951-52, and (2) the House of Delegates, as "one House of a bicameral legislature, resting solely onits role in the legislative process," had not suffered a discrete and cognizable injury, id. at 1953. The Court similarly dismissed the intervenors' appeal of our remedial decision for lack of jurisdiction. Va. House of Delegates v. Bethune-Hill, 139 S. Ct. 2715 (2019) (mem.). The plaintiffs now seek reimbursement of their attorneys' fees and litigation expenses under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e).¹

II.

It is undisputed that the plaintiffs, as the prevailing parties in this civil rights lawsuit, are entitled to reasonable attorneys' fees and litigation expenses under 42 U.S.C. § 1988 and 52 U.S.C. § 10310(e). See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (a plaintiff is a prevailing party under Section 1988 if he "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit" (citation omitted)); see also Brandon v. Guilford Cty. Bd. of Elections, 921 F.3d 194, 198 (4th Cir. 2019) ("Because the language of § 1988 and § 10310(e) are phrased in identical terms, we apply the same rule of decision under both of them." (citation and internal quotation marks omitted)). In evaluating the plaintiffs' motion, we must answer two questions: (1) which party or parties bear responsibility for paying the fees and expenses incurred by theplaintiffs; and (2) the amount of fees and expenses that the plaintiffs are entitled to recover. We address each issue in turn.

A.

We begin with the issue of whether the intervenors may be held responsible for the fees and expenses (the challenged fees and expenses) incurred by the plaintiffs in responding to the intervention motion and in opposing the intervenors' appeal of our liability and remedial decisions to the Supreme Court. All parties agree...