State of Texas v. Holder

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

)
STATE OF TEXAS, )
)
Plaintiff, )
)
v. )
)
ERIC H. HOLDER, JR., in his official )
capacity as Attorney General of the ) Civil Action No. 12-128 (RMC)
United States, )
)
)
Defendant, and )
)
ERIC KENNIE, et al., )
)
Defendant-Intervenors. )
)

OPINION

In 2012, the U.S. Attorney General and thirty-one Defendant-Intervenors

challenged Texas’s proposed voter identification law and momentarily prevailed before a three-

judge panel. Defendant-Intervenors now seek an award of attorneys’ fees, expenses, and costs,

despite the subsequent vacatur of the three-judge panel’s opinion by the Supreme Court. This

Court previously decided a similar case, Texas v. United States, which awarded attorneys’ fees to

Defendant-Intervenors who successfully challenged Texas’s redistricting maps in Voting Rights

Act litigation before a three-judge panel, even though the Supreme Court later vacated the three-

judge panel’s opinion as moot. But the Court arrives at a different result here. While the

redistricting dispute eventually became moot, in this case, Texas simply kept appealing until the

Supreme Court vacated the three-judge panel’s opinion. Because the voter identification law is

now in effect and because Texas maintained its position throughout this litigation, the Court will

1
deny the requested fees and costs.

I. FACTS

The parties in this litigation disputed whether Texas’s photo identification law

could be implemented consistent with the Fifteenth Amendment to the U.S. Constitution, see

U.S. Const. amend. XV, § 1, and the Voting Rights Act of 1965 (VRA), 42 U.S.C. §§ 1973 et

seq. On May 27, 2011, Governor Rick Perry signed into law Senate Bill 14 (SB 14), which

required registered Texas voters to identify themselves at the polls with one of the following

forms of government-issued photo identification: (1) a driver’s license or personal identification

card issued by the Texas Department of Public Safety (DPS); (2) a license to carry a concealed

handgun issued by DPS; (3) a U.S. military identification card; (4) a U.S. citizenship certificate

with photograph; or (5) a U.S. passport. Tex. Elec. Code § 63.0101 (Jan. 1, 2012).

SB 14 represented a striking departure from then-existing Texas law. Unlike

preceding enactments, SB 14 required voters to present photo identification at the polls,

prohibited the use of identification that had expired more than sixty days before the date of

voting, and banned the use of pictureless voter registration certificates commonly issued by

Texas county registrars. See id. Voters who lacked a government-issued photo identification

could obtain an election identification certificate from DPS free of charge. See SB 14, § 20. The

voter identification law preserved an exemption for voters with documented disabilities and

voters over the age of sixty-five, as well as disabled voters, to vote by mail without obtaining or

presenting photo identification when voting.

Because Texas was a jurisdiction covered by Section 5 of the VRA, 28 C.F.R. pt.

51 App., it could not implement SB 14 without obtaining “preclearance” from either the U.S.

Attorney General or a three-judge panel of this Court. 42 U.S.C. § 1973c(a). To secure

2
preclearance, Texas was required to demonstrate that SB 14 “neither ha[d] the purpose nor

[would] have the effect of denying or abridging the right to vote on account of race[,] color,” or

“member[ship] [in] a language minority group.” Id. §§ 1973c(a). 1 Therefore, on July 25, 2011,

Texas submitted SB 14 to the U.S. Department of Justice (DOJ) for preclearance. Compl. ¶ 12;

id., Ex. 2 (Jul. 25, 2011 McGeehan Letter) [Dkt. 1-3].

Under the VRA, the Attorney General was required to “interpose[] an objection

within sixty days” of the State’s request for preclearance. 42 U.S.C. § 1973c(a). Texas, wanting

to implement the photo-ID bill before the 2012 presidential election, requested expedited

consideration of its submission, with a proposed decision date of August 20, 2011. See Jul. 25,

2011 McGeehan Letter at 1 (citing 28 C.F.R. § 51.34). The Attorney General did not accede to

this timeline. Instead, on September 23, 2011, DOJ informed the Texas Director of Elections

that the information provided in the State’s preclearance submission was “insufficient to enable

[it] to determine that the proposed changes have neither the purpose nor will have the effect of

denying or abridging the right to vote on account of race, color, or membership in a language

minority group, as required under Section 5” of the VRA. Compl., Ex. 3 (Sept. 23, 2011 Herren

Letter) [Dkt. 1-4] at 1. Accordingly, DOJ requested additional information concerning the

number of registered Texas voters who might be required to secure additional forms of voter

identification under SB 14. 2 Id. Texas responded to DOJ’s requests on October 4, 2011, see

1
In 1975, Congress extended the VRA to cover members of language minority groups. See 42
U.S.C. § 1973b(f)(2); see also id. § 1973l(c)(3) (defining the terms “language minorities” and
“language minority groups”).
2
Specifically, DOJ requested information related to:

a. The number of registered voters in Texas, by race and Spanish
surname within county of residence, who currently possess a
Texas driver’s license or other form of photo identification
issued by DPS that is current or has expired within sixty days.

3
Compl. ¶ 14, the Attorney General requested further supplementation, see id. ¶ 15, and the

preclearance record was completed on January 12, 2012, see id. ¶ 16.

In the meantime, while the Attorney General was considering SB 14, DOJ denied

preclearance to a newly-enacted voter identification law in South Carolina. Id. ¶ 17. DOJ

concluded that the South Carolina law—which was, in many respects, identical to SB 14—would

have a differential impact on non-white registered voters. In other words, DOJ concluded that

South Carolina had “failed to meet its burden of demonstrating that [the photo identification law]

[would] not have a retrogressive effect.” Compl., Ex. 6 (DOJ Letter to South Carolina) [Dkt. 1-

7] at 4–5. Texas filed a Complaint against the Attorney General in this Court on January 24,

2012, 3 on the assumption that DOJ would apply the same reasoning to deny Texas’s application.

See Compl. ¶¶ 21–22.

On March 12, 2012, the Attorney General denied preclearance to SB 14, finding

that the State had failed to show that SB 14 would not have “the effect of denying or abridging

the right to vote on account of race.” Am. Compl. [Dkt. 25], Ex. 7 (Mar. 12, 2012 DOJ Letter)

[Dkt. 25-7] at 1–2 (citing Georgia v. United States, 411 U.S. 526 (1973); 28 C.F.R. § 51.52). In

...

b. For the 605,576 registered voters who the State has advised do
not have a Texas driver’s license or personal identification
card, . . . the number of such persons by Spanish surname, as
well as an estimated number by race, within county of
residence; and

c. Describe any and all efforts . . . to provide notice to these
individuals of the requirements of S.B. 14 and the availability
of a free DPS-issued identification.

Sept. 23, 2011 Herron Letter at 2–3.
3
The case was assigned to a three-judge Court, which included Circuit Judge David S. Tatel and
District Judges Rosemary M. Collyer and Robert L. Wilkins.

4
his decision, the Attorney General concluded that the data submitted by Texas showed that

registered Hispanic voters were more than twice as likely as registered non-Hispanic voters to

lack an approved form of photo identification. Id. at 2. The Attorney General also expressed

concern that the free Election Identification Certificate (EIC) would not mitigate the financial

burden of SB 14 on Hispanic voters. Id. at 3. Thereafter, Texas filed an Amended Complaint in

this Court, which included a claim that Section 5 of the VRA, as reauthorized in 2006,

“exceed[ed] the enumerated powers of Congress and conflict[ed] with Article IV of the

Constitution and the Tenth Amendment.” Am. Compl. at 1–2.

The three-judge Court received several motions to intervene on behalf of

individual voters, elected representatives, and civil rights advocacy groups. The first such

motion was filed by Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasy, Jane

Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon

(collectively, the Kennie Intervenors), 4 and the Court granted their motion to intervene on March

15, 2012. See Mar. 15, 2012 Order [Dkt. 17] at 2. Defendant-Intervenors were directed to

“avoid duplication of efforts” and to consolidate their briefing and argument. See Apr. 13, 2012

Minute Order. The Court also imposed an expedited schedule, as this litigation represented

Texas’s only chance of implementing SB 14 before the November 2012 elections.

4
The Court also received and granted four motions to intervene on behalf of the following
Defendant-Intervenors: (1) the Texas State Conference of NAACP Branches and the Mexican
American Legislative Caucus, see Mar. 12, 2012 Mot. to Intervene [Dkt. 15]; (2) the Texas
Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Reverend
Peter Johnson, Reverend Ronald Wright, and Donald Wright, see Mar. 22, 2012 Mot. to
Intervene [Dkt. 38]; (3) Victoria Rodriguez, Nicole Rodriguez, Southwest Voter Registration
Education Project, and Mi Familia Vota Education Fund, see Mar. 23, 2012 Mot. to Intervene
[Dkt. 42]; and (4) the Southwest Workers Union and La Union Del Pueblo Entero, see Apr. 4,
2012 Mot. to Intervene [Dkt. 64]. See Mar. 15, 2012 Order [Dkt. 17] at 2; Apr. 13, 2012 Minute
Order. These Defendant-Intervenors have not submitted motions for attorneys’ fees. As such,
this Opinion focuses solely on the Kennie Intervenors.

5
 After expedited discovery, the three-judge Court held a one-week bench trial that

commenced on July 9, 2012. DOJ and Defendant-Intervenors presented evidence at trial and

argued against preclearance. Texas v. Holder, 888 F. Supp. 2d 113 (D.D.C. 2012). Specifically,

Defendant-Intervenors relied on data from Texas voter registration forms to argue that Hispanic

voters were disproportionately likely to lack photo identification. Id. at 137–38. The Kennie

Intervenors also called four witnesses at trial: Texas State Senator Wendy Davis, Texas State

Senator Rodney Ellis, expert witness Dr. Allan Lichtman, and election law expert Randall Buck

Wood. See Mot. for Fees [Dkt. 383] at 5–10. These witnesses testified as to various efforts to

mitigate the burden of SB 14 on indigent persons, the hidden costs of SB 14 for indigent persons

lacking qualifying voter identification, and the empirical flaws in Texas’s expert testimony

regarding the impact of SB 14 on voter turnout.

From this record, the Court found that Texas had offered faulty data and

unreliable testimony concerning whether minorities disproportionately lacked the necessary

identification under SB 14. Texas, 888 F. Supp. 2d at 127. Because Texas submitted nothing

more, the Court concluded that “the state [] failed to meet its burden of demonstrating that SB 14

lacks retrogressive effect.” Id. The Court also considered the undisputed record evidence and

found that “racial minorities in Texas [were] disproportionately likely to live in poverty and,

because SB 14 will weigh more heavily on the poor, the law will likely have retrogressive

effect.” Id. Accordingly, the Court denied Claim One, i.e., Texas’s request to pre-clear SB 14

under Section 5 of the VRA, and stayed Claim Two, i.e., Texas’s claim that Section 5 of the

VRA is unconstitutional, pending the parties’ submission of a joint proposed briefing schedule.

Texas appealed this Court’s decision on Claim One to the Supreme Court.

Before the Supreme Court ruled on Texas’s appeal, however, it decided Shelby

6
County v. Holder, 133 S. Ct. 2612 (2013). Shelby County involved a constitutional challenge to,

inter alia, Section 4 of the VRA. The Supreme Court held that because the coverage formula in

Section 4(b) was based on stale data, it distinguished among the States in an unconstitutional

manner, and it could “no longer be used as a basis for subjecting jurisdictions to preclearance.”

Id. at 2631. Thereafter, on June 27, 2013, the Supreme Court vacated and remanded the three-

judge panel’s decision denying preclearance to Texas for SB 14.

After the Supreme Court issued judgment on Texas’s appeal, see July 29, 2013

S. Ct. Judgment [Dkt. 377], the three-judge panel dismissed all claims based on the Supreme

Court’s ruling in Shelby County. Defendant-Intervenors requested that the Court retain

jurisdiction to hear any motions for attorneys’ fees and costs, and expressed their intention to file

motions for attorneys’ fees within fourteen days of the three-judge panel’s entry of judgment.

Defendant-Intervenors’ Response to Mot. to Dismiss at 2 (citing Fed. R. Civ. P. 54(d)(2)).

The Kennie Intervenors now move for attorneys’ fees and costs. 5 They contend

that they are prevailing parties and are entitled to fees and costs under the VRA, seeking a total

reimbursement of $353,150.97. Mot. for Fees [Dkt. 383] at 27.

Texas has not filed a brief in opposition to the pending motion. Instead, Texas

filed a three-page “Advisory” that begins and ends with Shelby County. See Advisory

[Dkt. 384]. Texas writes that the Shelby County decision means that the State was wrongly

subjected to preclearance in the first place. Thus, Texas contends, the participation of

Defendant-Intervenors in this VRA litigation only served to “impose[] significant
5
The Kennie Intervenors have timely filed their motion pursuant to Federal Rules of Civil
Procedure 54(d), which provides that a motion for attorneys’ fees and costs must be filed “no
later than 14 days after the entry of judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i). The three-judge
Court’s December 21, 2012 Minute Order did not alter the deadlines set by the Federal Rules, as
the Court’s Order merely held in abeyance Defendant-Intervenors’ motions for attorneys’ fees
pending appeal without imposing alternate deadlines. See Dec. 21, 2012 Minute Order.

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unconstitutional burdens on the State, including that for more than a year, Texas was unable to

implement an election-integrity measure that numerous States continue to enact and

implement . . . .” Id. at 2. Texas adds that “the only basis upon which the Kennie Intervenors

could have conceivably claimed prevailing-party status” was the three-judge Court’s denial of

preclearance, which the Supreme Court vacated on appeal. Id.

II. ANALYSIS

This case was tried on the merits to a three-judge Court under the VRA, and that

Court fulfilled its mandate when it entered its judgment. Section 5 of the VRA requires matters

to be “heard and determined by a court of three judges” only to the extent required by 28 U.S.C.

§ 2284, see 42 U.S.C. § 1973c(a). Section 2284, in turn, permits “[a] single judge . . . [to]

conduct all proceedings except the trial, and enter all orders permitted by the rules of civil

procedure except as [otherwise] provided . . . .” 28 U.S.C. § 2284(b)(3). Here, the three-judge

panel fulfilled its statutory purpose. The question of fees and costs is an ancillary matter and is

properly resolved by the district court judge to whom the case was assigned initially. See, e.g.,

Pub. Serv. Comm’n of Mo. v. Brashear Freight Lines, Inc., 312 U.S. 621, 625 (1941) (noting that

a single district judge, rather than a three-judge panel, should have resolved a motion for

damages that was filed after the three-judge panel had ruled on an injunction application for

which the three-judge panel had been convened); Hamilton v. Nakai, 453 F.2d 152, 161 (9th Cir.

1971) (holding that a single judge could decide an ancillary issue because the three-judge court

had issued its judgment and therefore “had fulfilled the statutory purpose for which the two

additional judges had been called”); Allen v. Cnty. Sch. Bd. of Prince Edward Cnty., Va., 249

F.2d 462, 464 (4th Cir. 1957) (finding post-judgment motion requesting deadline for compliance

with three-judge court’s desegregation order was properly resolved by single district court

8
judge).

At the outset, the Court notes that parties in the United States ordinarily bear their

own attorneys’ fees regardless of the outcome of the litigation. Fresh Kist Produce, LLC v. Choi

Corp., 362 F. Supp. 2d 118, 125 (D.D.C. 2005) (citing Buckhannon Bd. & Care Home, Inc. v. W.

Va. Dep’t of Health & Human Res., 532 U.S. 598, 602–03 (2001), superseded in part by statute,

Open Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524 (codified at 5 U.S.C.

§ 552(a)(4)(E) (2009))). There are exceptions, however, to this so-called “American Rule.” For

instance, the American Rule does not apply where there is an explicit statutory basis for

awarding fees. Id. (citing Alyeska Pipeline Serv. Co. v. The Wilderness Soc’y, 421 U.S. 240, 257

(1975), superseded by statute on other grounds, Civil Rights Attorney’s Fees Awards Act of

1976, Pub. L. No. 106-274, § 4(d), 114 Stat. 803, 804 (codified at 42 U.S.C. § 1988(b) (2000))).

If a party establishes that it is entitled to attorneys’ fees, then the question

becomes whether the fees sought are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433

(1983), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 795–805 (2002).

The standard metric for determining the reasonableness of a fee request is the “lodestar

method.” 6 Such a calculation “produces an award that roughly approximates the fee that the

prevailing attorney would have received if he or she had been representing a paying client who

was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,

551 (2010).

A. Kennie Intervenors’ Request for Fees and Costs

The Kennie Intervenors contend that statutory fee shifting provisions apply here.

6
The “lodestar” approach to fee awards was established by the Supreme Court in Hensley, and is
the approach followed by the federal courts in most fee award disputes. See Gisbrecht, 535 U.S.
at 802.

9
Specifically, they seek attorneys’ fees under § 1973l(e) of the VRA, 42 U.S.C. § 1973l(e), and

subsection (b) of 42 U.S.C. § 1988. Both provisions contain similar language and identical

legislative purposes. See Donnell v. United States, 682 F.2d 240, 245 n.7 (D.C. Cir. 1982). The

former states that “[i]n 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), while the latter permits

a court, “in its discretion, . . . [to] allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs,” 42 U.S.C. § 1988(b). Both provisions are

designed to “encourag[e] private litigants to act as ‘private attorneys general’ in seeking to

vindicate the civil rights laws.” Donnell, 682 F.2d at 245. As a result, the two provisions are

construed consistently. Id. at 245 n.7 (citing Riddell v. Nat’l Democratic Party, 624 F.2d 539,

543 (5th Cir. 1980)); see also Buckhannon, 532 U.S. at 603 n.4 (recognizing that § 1973l(e) and

§ 1988(b) have been interpreted in a consistent manner).

Requests for attorneys’ fees pursuant to § 1973l(e) and § 1988(b) generally

implicate two questions of law. The first is whether the party seeking recovery of attorneys’ fees

is a prevailing party. If so, then a fee award ordinarily should be granted. See, e.g., Blanchard v.

Bergeron, 489 U.S. 87, 89 n.1 (1989) (observing that a party that prevails in § 1988 litigation

“ordinarily” is entitled to attorneys’ fees (internal quotations and citation omitted)); Donnell, 682

F.2d at 245 (“[T]he legislative history [of § 1973l(e)] makes clear that a prevailing party usually

should recover fees.”). The second is whether a court should exercise its discretion not to award

attorneys’ fees because there are “special circumstances [that] would render such an award

unjust.” Newman v. Piggie Park Enters., 390 U.S. 400, 402 (1968).

10
 1. Prevailing Party Precedent

The phrase “prevailing party” is a legal term of art, Buckhannon, 532 U.S. at 603,

which has been addressed by the Supreme Court in multiple decisions. See, e.g., Tex. State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) (“A prevailing party must

be one who has succeeded on any significant claim affording it some of the relief sought, either

pendent lite or at the conclusion of the litigation.”); Hewitt v. Helms, 482 U.S. 755, 760 (1987)

(“[P]laintiff [must] receive at least some relief on the merits of his claim before he can be said to

prevail.”). The Supreme Court most recently addressed the concept in Buckhannon. Interpreting

the fee-shifting provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C.

§ 3613(c)(2), and the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12205, 7 the

Supreme Court required a “prevailing party” to be “one who has been awarded some relief by the

court,” Buckhannon, 532 U.S. at 603, resulting in a “judicially sanctioned change in the legal

relationship of the parties,” id. at 605.

Buckhannon excluded from its definition instances in which the objective of a

lawsuit is achieved because a defendant voluntarily changes its conduct. Thus, the “catalyst

theory” of fee recovery, id. at 601, which is dependent on voluntary action, is not connected to

the clear meaning of “prevailing party,” id. at 605. Neither the legislative history of similar fee-

shifting provisions, such as the Civil Rights Attorney’s Fee Awards Act, id. at 607, nor the

Court’s precedents supported a “holding that the term ‘prevailing party’ authorizes an award of

attorney’s fees without a corresponding alteration in the legal relationship of the parties,” id. at
7
The fee-shifting provisions of both statutes are similar to 42 U.S.C. § 1973l(e) and 42 U.S.C.
§ 1988(b), under which Defendant-Intervenors seek fees. The Fair Housing Amendments Act
provides that “the court, in its discretion, may allow the prevailing party . . . a reasonable
attorney’s fee and costs,” 42 U.S.C. § 3613(c)(2), while the ADA states that “the court . . . , in its
discretion, may allow the prevailing party . . . a reasonable attorney’s fee, including litigation
expenses and costs,” 42 U.S.C. § 12205.

11
605. The Supreme Court also was troubled because the catalyst theory permits litigants to

recover attorneys’ fees for “nonfrivolous but nonetheless potentially meritless lawsuit[s].” Id. at

606. Not only are such recoveries without “the necessary judicial imprimatur,” id. at 605, but

they discourage voluntary changes in conduct, id. at 608. Accordingly, the Supreme Court held

that voluntary changes in conduct disassociated from judicial action are similar to a “reversal of

a directed verdict,” a finding of constitutional infirmity “unaccompanied by judicial relief,” and

other nonjudicial modifications of actual conditions, none of which permits recovery of

attorneys’ fees. 8 Id. at 605–06 (internal quotations and citations omitted).

Since Buckhannon, the D.C. Circuit has adopted a three-part test for adjudicating

prevailing-party status; that test requires “(1) . . . a court-ordered change in the legal relationship

of the parties; (2) [a] judgment . . . in favor of the party seeking the fees; and (3) [a] judicial

pronouncement . . . accompanied by judicial relief.” Green Aviation Mgmt. Co. v. FAA, 676

F.3d 200, 203 (D.C. Cir. 2012) (internal quotation marks and citation omitted). Notably, only

the latter two prongs are relevant when a defendant is the party seeking attorneys’ fees. 9 Id. at

204.

8
Through the Open Government Act of 2007, Congress superseded Buckhannon and reinstated
the catalyst theory of attorney fee recovery only for fee awards under the Freedom of
Information Act, 5 U.S.C. § 552. See Brayton v. Office of the U.S. Trade Representative, 641
F.3d 521, 525 (D.C. Cir. 2011).
9
In Oil, Chemical, & Atomic Workers International Union v. Department of Energy, 288 F.3d
452 (D.C. Cir. 2002), superseded by statute on other grounds, Open Government Act of 2007,
Pub. L. No. 110-175, 121 Stat. 2524, as recognized in Summers v. Department of Justice, 569
F.3d 500, 503 (D.C. Cir. 2009), the D.C. Circuit ruled that when interpreting a fee-shifting
provision courts should give the phrase “prevailing party” the same construction as it does in
other fee-shifting provisions “unless there is some good reason for doing otherwise,” id. at 455.
Overcoming this presumption is difficult. Green Aviation, 676 F.3d at 202 (explaining that this
Circuit “has joined other circuits in acknowledging that the burden of establishing good reason
not to apply Buckhannon is not easily met” (internal alterations, citation, and quotations
omitted)). Neither Texas nor the Kennie Intervenors argue that Buckhannon should not control
the meaning of “prevailing party” in 42 U.S.C. § 1973l(e) or 42 U.S.C. § 1988(b).

12
 Buckhannon expressly recognized only two appropriate bases for awarding

attorneys’ fees––judgments on the merits and settlements enforced through consent decrees.

Buckhannon, 532 U.S. at 605 (“We have only awarded attorney’s fees where the plaintiff has

received a judgment on the merits, or obtained a court-ordered consent decree.” (internal

citations omitted)). Prevailing-party status in this jurisdiction, however, is not so limited. Under

the D.C. Circuit’s construction of Buckhannon, a litigant in this jurisdiction need only establish

that he or she received “some form of judicial relief, not necessarily a court-ordered consent

decree or a judgment on the merits.” Turner v. Nat’l Transp. Safety Bd., 608 F.3d 12, 15 (D.C.

Cir. 2010). The D.C. Circuit has recognized that, under certain circumstances, prevailing-party

status may result from a favorable jurisdictional ruling, a grant of preliminary injunction, or even

a judicially-sanctioned stipulation. Id. (citing with approval District of Columbia v. Jeppsen ex

rel. Jeppsen, 514 F.3d 1287, 1290 (D.C. Cir. 2008); Select Milk Producers, Inc. v. Johanns, 400

F.3d 939, 945 (D.C. Cir. 2005); see also Carbonell v. INS, 429 F.3d 894, 895–96, 899 (9th Cir.

2005)).

2. Kennie Intervenors’ Arguments

The Kennie Intervenors state that they joined the litigation to oppose preclearance

of SB 14. The Attorney General first denied preclearance to Texas on March 12, 2012, with the

result that Texas was, for at least a time, prevented from implementing its voter identification

law. Following a trial before the three-judge panel of this Court at which all parties presented

demonstrative evidence, expert reports, and testimony, the panel found that SB 14 violated the

VRA. Therefore, it, too, denied preclearance. The Kennie Intervenors argue that this Court’s

judgment provided a substantial benefit, as it prevented Texas from applying the voter

identification law during the November 2012 elections. Moreover, the Kennie Intervenors

13
emphasize that this case had a real-world impact because, absent the Court’s judgment, certain

Kennie Intervenors would have been denied the right to vote based on SB 14’s requirements. 10

Texas responds only with its Advisory, which posits that the three-judge Court’s

denial of preclearance is “the only basis upon which the Kennie Intervenors could [] conceivably

. . . claim[] prevailing-party status,” Advisory at 2, but that the decision does not support a fee

award because it “was vacated on appeal,” id. Texas asserts that Shelby County must be given

full retroactive effect and that this Court has no choice but to deny the Kennie Intervenors’

motion for fees and costs. Id. at 2–3 (citations omitted).

3. Are Kennie Intervenors Prevailing Parties?

In its Advisory, Texas’s main contention is that the Supreme Court, as a matter of

fact and law, erased the three-judge Court’s opinion, and, consequently, the Kennie Intervenors’

successes before that Court. 11 Texas believes that Shelby County establishes that the entirety of

the preclearance process, including this Court’s denial of preclearance, was a constitutional

nullity. Texas does not address the Kennie Intervenors’ argument that they achieved the relief

they sought because Texas was prohibited from implementing SB 14 before the November 2012

elections.

10
The Kennie Intervenors also rely on Commissioners Court of Medina County, Texas v. United
States, 683 F.2d 435 (D.C. Cir. 1982), in arguing their prevailing-party status. The Kennie
Intervenors contend that a judgment denying preclearance gives rise to a presumption that any
defendants who intervened are prevailing parties. Medina County, however, is a “catalyst
theory” fee award case that predates Buckhannon. See Medina Cnty., 683 F.2d at 440
(describing the applicable test for prevailing party status as whether “the party . . . substantially
received the relief sought, and . . . [whether] the lawsuit . . . [was] a catalytic, necessary, or
substantial factor in attaining the relief” (emphasis added)). Although neither the Supreme
Court nor the D.C. Circuit has overruled Medina County explicitly, its continuing validity in
light of Buckhannon is uncertain, and here, immaterial to the Court’s determination of the
Kennie Intervenors’ prevailing-party status.
11
Texas mentions that SB 14 is currently in effect to contest Defendant-Intervenors’ prevailing
party status. This contention is further discussed below, see infra.

14
 In Texas v. United States, 2014 WL 2758597 (D.D.C. June 18, 2014), this Court

found that the State of Texas had effectively conceded those Defendant-Intervenors’ arguments

by filing a nearly-identical two-page Advisory and refusing to challenge specific arguments in

Defendant-Intervenors’ motions for attorneys’ fees. Id. at *7 (citing D.D.C. Local Civil Rule

7(b)). Of relevance here, the Court found that Texas had not disputed that Defendant-Intervenors

were prevailing parties prior to the Supreme Court’s issuance of Shelby County and its

subsequent vacatur of the three-judge Court’s opinion as moot. Id.

So, too, here. Texas does not dispute that the Kennie Intervenors were prevailing

parties prior to the Supreme Court’s issuance of Shelby County and subsequent vacatur of this

Court’s opinion denying preclearance to SB 14. Thus, the Court finds that Texas has waived any

argument as to the prevailing party status of the Kennie Intervenors prior to Shelby County. See

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 238 F. Supp. 2d 174, 178 (D.D.C.

2002) (“It is well understood in this Circuit that when a [non-movant] files an opposition to a

motion . . . addressing only certain arguments raised by the [movant], a court may treat those

arguments that the [non-movant] failed to address as conceded.” (citing FDIC v. Bender, 127

F.3d 58, 67–68 (D.C. Cir. 1997))); CSX Transp., Inc. v. Commercial Union Ins., Co., 82 F.3d

478, 482–83 (D.C. Cir. 1996); see also Twelve John Does v. District of Columbia, 117 F.3d 571,

577 (D.C. Cir. 1997) (explaining that the Circuit “honors . . . [a district court’s] enforcement of

the rule” that “absence of a response [is] . . . a basis for treating the motion as conceded”).

But while Texas concedes that the Kennie Intervenors were prevailing parties

prior to Shelby County, it argues against an award of fees and costs on the ground that Shelby

County effectively stripped the Kennie Intervenors of their victory. In Texas v. United States,

this Court considered and rejected the same argument based on National Black Police

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Association v. District of Columbia Board of Elections & Ethics, 168 F.3d 525 (D.C. Cir. 1999)

and Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986). See Texas v. United States, 2014 WL

2758597, at *8. Therefore, as it did in Texas v. United States, the Court considers the impact of

those cases on the matter at hand.

In National Black Police Association, various plaintiffs sought an injunction

against campaign contribution limits for certain local elections. 168 F.3d at 526–27. The district

court enjoined the initiative as violative of the First Amendment, and fifty-two days later, the

D.C. City Council repealed the challenged contribution limits. Id. at 527. On appeal, the D.C.

Circuit deemed the matter moot in light of the Council’s repeal and vacated the district court’s

judgment. The district court then awarded attorneys’ fees to plaintiffs, holding that “despite the

eventual mootness of the case . . . . the injunction changed the legal relationship of the parties,

and contributors were able to make substantial contributions that otherwise would not have been

legal.” Id. The D.C. Circuit agreed. “The fact that the case was moot by the time of the appeal

[did] not alter the fact that the injunction altered the legal relationship between the parties when

it was issued . . . .” Id. at 528. It was of no moment to the D.C. Circuit that the plaintiffs would

have realized their goal fifty-two days later when the Council repealed the initiative. “The

plaintiffs secured a real-world vindication of their First Amendment rights” regardless of

subsequent events. Id. Accordingly, the “district court properly found that the plaintiffs were

prevailing parties because at the time judgment was entered, the injunction altered the legal

relationship between the parties.” Id. at 529.

Similarly, in Grano, plaintiffs obtained an injunction that delayed the demolition

of an historical site pending a public referendum. 783 F.2d at 1107–08. The D.C. Circuit

affirmed the district court’s finding that the plaintiffs were prevailing parties despite the fact that

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the vote to preserve the site was invalidated. Id. at 1109. The Circuit reasoned that the public

referendum would have had no chance to preserve the building at all if the building were razed

before the election. In other words, the Grano plaintiffs “faced two hurdles[:] [t]hey successfully

surmounted the first by holding off the demolition until the election . . . . [and] [a]lthough their

goal of ensuring that the result of the election would have legal effect was subsequently blocked

in another court, they nonetheless succeeded in the aspect of their claims that brought them into

federal court . . . .” Id. Significantly, the D.C. Circuit subsequently has observed that “[t]he

injunction [in Grano] produced a lasting change in the parties’ legal circumstances and gave the

plaintiffs the precise relief that they had sought.” Thomas v. Nat’l Sci. Found., 330 F.3d 486,

493 (D.C. Cir. 2003).

In Texas v. United States, the Fee Applicants challenged three proposed

redistricting maps before a three-judge panel. The panel denied preclearance for the redistricting

maps, and Texas appealed that decision to the Supreme Court. While the three-judge Court’s

opinion and Shelby County remained pending before the Supreme Court, the Texas Legislature

passed three statutes that redrew the State’s voting districts and abandoned the proposed

redistricting maps that had been challenged before the three-judge panel. Thereafter, the

Supreme Court issued Shelby County, vacated the three-judge panel’s decision to deny

preclearance to Texas for the proposed redistricting maps, and directed the panel to consider

whether the controversy had been mooted by Texas’s legislative action. On remand, the three-

judge panel found that “both Shelby County and Texas’s enactment of superseding redistricting

plans mooted the controversy.” 2014 WL 2758597, at *3. Upon consideration of the motions

for attorneys’ fees, this Court explained that “[a]lthough the Supreme Court ultimately vacated

[the three-judge panel’s] opinion, neither Shelby County nor the vacatur erased the real-world

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vindication that Defendant-Intervenors had achieved,” i.e., the judicial bar to implementation of

Texas’s proposed redistricting maps. Id. at *8. Therefore, “[i]n line with this Circuit’s

precedents and those in other courts of appeals,” the Court found that “Defendant-Intervenors did

not lose prevailing-party status due to subsequent mootness.” Id. (emphasis added) (citations

omitted).

The procedural posture of this fee application presents a different question.

Unlike Texas v. United States, the legal controversy surrounding SB 14 was not rendered moot

by action of the Texas legislature. Texas did not withdraw its voter identification law after a loss

in VRA litigation. To the contrary, Texas maintained its position that it was entitled to

implement SB 14 as a reasonable measure to protect against voter fraud.

Admittedly, the prevailing-party precedent includes language that is capacious

enough to find prevailing-party status even where the initial decision is vacated on appeal. See,

e.g., Nat’l Black Police Ass’n, 168 F.3d at 528 (“‘In short, a plaintiff ‘prevails’ when actual relief

on the merits of his claim materially alters the legal relationship between the parties by

modifying the defendant’s behavior in a way that directly benefits the [prevailing party].’”

(quoting Farrar v. Hobby, 506 U.S. 103, 111–12 (1992))); id. at 529 (“[T]he district court

properly found that the plaintiffs were prevailing parties because at the time the judgment was

entered, the injunction altered the legal relationship between the parties.”); Turner, 608 F.3d at

15 (noting that a prevailing party “need receive only some form of judicial relief, not necessarily

a court-ordered consent decree or a judgment on the merits”); Grano, 783 F.2d at 1109 (“While

partial versus complete success is a consideration in assessing the amount of fees, the critical

question in evaluating the availability of fees is whether fee claimants have received any benefit

at all.” (internal quotation marks and citation omitted)).

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 It cannot be denied that the Kennie Intervenors received some benefit from the

three-judge panel’s ruling. As they explain:

[i]f imposed in 2012, the photo ID law would have resulted in
some of the Kennie Intervenors being denied the right to vote. For
example, as Intervenor Kennie explained in his deposition
testimony, he lacks a valid photo ID that would permit him to cast
a ballot under SB 14. Kennie, who is indigent, [also] cannot obtain
a photo ID from any Texas DPS office . . . . Since he lacks photo
ID, this Court’s decision provided Defendant Intervenor Kennie
with a substantial benefit: he remained eligible to vote in the 2012
election.

Mot. for Fees at 12. Thus, while certain Kennie Intervenors may be required to present voter

identification at the polls today, the delayed imposition of SB 14 and the ability to cast ballots

during the November 2012 elections were meaningful events that, at least for a time, altered the

legal relationship between the parties.

Nonetheless, while the prevailing-party precedents include language that could

cover the instant matter, none extends beyond the procedural posture of subsequent mootness on

appeal. See, e.g., Grano, 783 F.2d at 1109 (“The mootness of the subsequent appeal . . .

emphasizes, rather than detracts from, the practical substance of [the plaintiffs’] victory.”). Put

differently, no court has held that a litigant maintains its prevailing party status after vacatur on

appeal.

There is a sound basis for enforcing this procedural distinction. For instance, in

Texas v. United States, the prevailing-party status of Defendant-Intervenors comported with a

commonsense determination of what it means to “prevail”: Defendant-Intervenors challenged

Texas’s proposed redistricting maps and, both immediately after the three-judge Court’s decision

and today, those redistricting maps are not in force. By contrast, this case did not become moot

and Texas never changed its endorsement of SB 14. The State of Texas simply appealed until it

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won and the three-judge panel decision barring SB 14 was vacated. The Court concludes that the

Kennie Intervenors’ prevailing-party status did not survive the Supreme Court’s vacatur of the

three-judge panel’s decision denying preclearance.

III. CONCLUSION

While the Court recognizes the apparent similarities between Texas v. United

States and Texas v. Holder, the different postures of these cases compel different results. Even

with Texas’s threadbare Advisory, on view of the whole record, the Court finds that the Kennie

Intervenors are not entitled to the requested attorneys’ fees and costs for want of prevailing-party

status. The Court will deny the Kennie Intervenors’ request for $353,150.97 in fees and costs. A

memorializing Order accompanies this Opinion.

/s/
ROSEMARY M. COLLYER
Date: August 11, 2014 United States District Judge

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