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Brat v. Personhuballah

United States Court of Appeals, Fourth Circuit

February 26, 2018

DAVID BRAT; BARBARA COMSTOCK; ROBERT WITTMAN, Congressman; BOB GOODLATTE, Congressman; RANDY FORBES, Congressman; MORGAN GRIFFITH, Congressman; SCOTT RIGELL, Congressman; ROBERT HURT, Congressman, Intervenors/Defendants - Appellants,
v.
GLORIA PERSONHUBALLAH, an individual; JAMES FARKAS, an individual, Plaintiffs - Appellees, ERIC CANTOR, Congressman; FRANK R. WOLF, Congressman, Intervenors/Defendants, and VIRGINIA STATE BOARD OF ELECTIONS; KENNETH CUCCINELLI, II, Defendants, JAMES B. ALCORN; CLARA BELLE WHEELER; SINGLETON B. MCALLISTER, Defendants - Appellees, and DAWN CURRY PAGE, an individual, Plaintiff.

          Argued: December 6, 2017

         Appeal from a Three-Judge Panel of the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge, Presiding, together with Albert Diaz, Circuit Judge, and Liam O'Grady, District Judge. (3:13-cv-00678-REP-LO-AD)

         ARGUED:

          Michael A. Carvin, JONES DAY, Washington, D.C., for Appellants.

          Marc Erik Elias, PERKINS COIE LLP, Washington, D.C., for Appellees.

          Gloria Personhuballah and James Farkas. Trevor Stephen Cox, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

          James B. Alcorn, Clara Belle Wheeler, and Singleton B. McAllister.

         ON BRIEF:

          Anthony J. Dick, JONES DAY, Washington, D.C., for Appellants.

          Mark R. Herring, Attorney General, Stuart A. Raphael, Solicitor General, Matthew R. McGuire, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, for Appellees.

          James B. Alcorn, Clara Belle Wheeler, and Singleton B. McAllister. Kevin J. Hamilton, William B. Stafford, Abha Khanna, PERKINS COIE LLP, Seattle, Washington, for Appellees.

          Gloria Personhuballah and James Farkas.

          Before NIEMEYER, TRAXLER, and KEENAN, Circuit Judges.

          Vacated and remanded by published opinion. Judge Niemeyer wrote the opinion, in which Judge Traxler and Judge Keenan joined.

          NIEMEYER, Circuit Judge.

         The main question presented in this appeal is whether intervening defendants can be required to pay a portion of prevailing plaintiffs' attorneys fees and costs, awarded under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e), when the intervening defendants were not charged with any wrongdoing and could not be held liable for the relief that the plaintiffs sought.

         Three Virginia voters commenced this action challenging a state law's delineation of Virginia's Third Congressional District as a racial gerrymander in violation of the Equal Protection Clause of the Fourteenth Amendment. They named as defendants the Virginia State Board of Elections, some members of the Board in their official capacities, and the Attorney General of Virginia (collectively, "the Commonwealth" or "Virginia"). A three-judge district court was convened under 28 U.S.C. § 2284(a) to determine the matter.

         Shortly after commencement of the action, eight U.S. Congressmen from Virginia, who neither resided in nor represented the Third District, were granted permission to intervene as defendants to defend the Third District based on their claim that granting relief to the plaintiffs would upset existing congressional district boundaries and constituent relationships and engender confusion among voters. After trial, the court concluded that the Third District was indeed a racial gerrymander.

         The Commonwealth determined not to appeal, but the Intervening Congressmen did. On appeal, the Supreme Court remanded the case for consideration of its recent decision in Alabama Legislative Black Caucus v. Alabama, 135 S.Ct. 1257 (2015), and the district court, after considering Alabama, again concluded that the Third District was a racial gerrymander. Once again, the Commonwealth determined not to appeal, but again the Intervening Congressmen did. The Supreme Court rejected that appeal on the ground that the Intervening Congressmen lacked standing. Wittman v. Personhuballah, 136 S.Ct. 1732, 1736 (2016).

         On the plaintiffs' motion, the district court awarded the plaintiffs as prevailing parties roughly $1.35 million in attorneys fees and costs and, in a 2-1 opinion, assessed roughly $480, 000 of those fees and costs against the Intervening Congressmen based on their independent appeals to the Supreme Court. Senior District Judge Robert Payne dissented, concluding that the Supreme Court's decision in Independent Federation of Flight Attendants v. Zipes, 491 U.S. 754 (1989), controlled and precluded the assessment of attorneys fees and costs against intervenors who were "blameless, " meaning that they were not charged as wrongdoers and legal relief could not ...


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