PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1389
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,
ERIC CANTOR, Congressman; FRANK R. WOLF, Congressman,
Intervenors/Defendants,
and
VIRGINIA STATE BOARD OF ELECTIONS; KENNETH CUCCINELLI, II,
Defendants,
v.
GLORIA PERSONHUBALLAH, an individual; JAMES FARKAS, an individual,
Plaintiffs - Appellees,
JAMES B. ALCORN; CLARA BELLE WHEELER; SINGLETON B.
MCALLISTER,
Defendants - Appellees,
and
DAWN CURRY PAGE, an individual,
Plaintiff.
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: December 6, 2017 Decided: February 26, 2018
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.
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.
2
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
3
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 have been obtained from them.
From the district court’s order assessing attorneys fees and costs against them, the
Intervening Congressmen appealed, relying on Zipes.
In Zipes, the Supreme Court held that an award of attorneys fees under a fee-
shifting statute, such as § 1988(b), should be made “against losing intervenors only where
the intervenors’ action was frivolous, unreasonable, or without foundation.” 491 U.S. at
761. Because we conclude that Zipes is controlling, we vacate the district court’s March
3, 2017 order awarding attorneys fees and costs and remand to the district court for
reconsideration of the plaintiffs’ petitions for fees in light of this opinion.
4
I
With its enactment of H.B. 251 on January 25, 2012, Virginia redrew its
congressional district lines, as it was required to do in response to the 2010 decennial
census. Three voters commenced this action under 42 U.S.C. § 1983 against the
Commonwealth, 1 challenging as unconstitutional the boundaries of the Third
Congressional District, which lies in southwest Virginia and extends from Richmond to
Norfolk, including Petersburg. They claimed that under H.B. 251, African Americans
were “packed” into the district to remove their votes from neighboring districts and that
the decision to do so was “driven primarily by race,” in violation of the Equal Protection
Clause. For relief, they sought a declaration that the Third District was unconstitutional
and an injunction enjoining the Commonwealth from holding elections under the existing
map. They also urged the court to take any actions necessary to draw new,
constitutionally valid congressional districts.
Shortly after this action was commenced, eight Congressmen representing various
congressional districts in Virginia, but not the Third District, filed a motion to intervene
as defendants, claiming that they had an interest in the existing 2012 map and that the
plaintiffs’ request that the map be redrawn “would not only upset existing district
1
Early in the litigation, the Attorney General of Virginia and Board of Elections
were dismissed as defendants, leaving as defendants only individual members of the
Board. And after the 2014 state elections resulted in the election of new members of the
Board, those members were substituted as defendants.
5
boundaries and constituent relationships but also engender confusion among the voting
public.” The district court granted their motion.
Following a bench trial, the district court found that the Third District was an
unconstitutional racial gerrymander, in violation of the Equal Protection Clause. Page v.
Va. State Bd. of Elections, 58 F. Supp. 3d 533 (E.D. Va. 2014). In its order, dated
October 7, 2014, the court directed that the 2014 congressional elections “proceed as
scheduled” under the existing 2012 map given the imminence of those elections, but it
enjoined the Commonwealth from holding future elections until a new redistricting plan
was adopted. It referred the matter to the Virginia General Assembly to adopt a new
redistricting plan “as expeditiously as possible.”
Given the factual findings made by the district court, the Commonwealth decided
not to appeal the district court’s October 7, 2014 order, concluding that the Supreme
Court would not likely reverse the decision under the demanding “clear error” standard of
review. The Intervening Congressmen, however, did appeal, invoking 28 U.S.C. § 1253.
The Supreme Court vacated the district court’s order and remanded the case “for
further consideration in light of Alabama Legislative Black Caucus v. Alabama.” Cantor
v. Personhuballah, 135 S. Ct. 1699 (2015) (mem.).
On remand, the district court considered Alabama and issued a new order, dated
June 5, 2015, applying the Alabama legal framework and again concluding that the Third
6
District was an unconstitutional racial gerrymander. 2 Page v. Va. State Bd. of Elections,
2015 WL 3604029 (E.D. Va. June 5, 2015). The court’s order gave the Virginia General
Assembly until September 1, 2015, to adopt a redistricting plan. Again, the
Commonwealth decided not to appeal, but the Intervening Congressmen did.
While that second appeal was pending, the September 1 deadline passed, and the
district court proceeded to address a remedial redistricting plan, soliciting proposed plans
from the parties and any interested nonparties. It also appointed a special master to assist
it in reviewing the plans and designing a new map. The Intervening Congressmen filed
motions to stay this process pending their appeal to the Supreme Court, but both the
district court and the Supreme Court denied them. By order dated January 7, 2016, the
district court selected for implementation a remedial plan proposed by the special master.
Meanwhile, the Supreme Court expressed doubt that the Intervening Congressmen
had standing to challenge the district court’s June 5, 2015 order because none of them
resided in or represented the Third District. It directed the parties to submit supplemental
briefing on the issue. In response, three of the ten Intervening Congressmen claimed that
they had standing, and the Commonwealth agreed as to at least one of them. The
Commonwealth, nonetheless, requested that the Court affirm the district court’s order on
the merits. In a unanimous decision, however, the Supreme Court determined that none
2
Following the remand order, the district court allowed two newly elected
Congressmen also to intervene as defendants.
7
of the Intervening Congressmen had standing and dismissed the appeal. Personhuballah,
136 S. Ct. at 1736.
Following the district court’s original order of October 7, 2014, that found the
Third District unconstitutional, the plaintiffs filed two petitions seeking attorneys fees
and costs pursuant to 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e), and the district
court granted the petitions, awarding the plaintiffs $779,189.39 in fees and costs and
assessing the award against the Commonwealth. The court, however, stayed enforcement
of the award pending completion of the litigation. After the district court entered its
second order dated June 5, 2015, again holding the Third District unconstitutional, the
plaintiffs filed a third petition for fees incurred litigating in the Supreme Court and on
remand. The district court denied that petition without prejudice, allowing the plaintiffs
to renew it pending the outcome of the Intervening Congressmen’s second appeal to the
Supreme Court. Finally, after the Supreme Court dismissed the second appeal, the
plaintiffs filed a fourth petition for fees, renewing their prior petition and seeking fees
incurred during the second appeal to the Supreme Court and in connection with the
development of a remedial redistricting plan. Ruling on all of the plaintiffs’ fee petitions
in the aggregate, the district court determined, by order dated March 3, 2017, that the
plaintiffs were entitled to a total award of $1,346,571.74 in fees and costs, including the
initial award of $779,189.39. Of the total $1.35 million award, the court, in a 2-1
decision, assessed $479,887.67 against the Intervening Congressmen, rejecting their
argument that Zipes precluded such an award against them. The majority found that
8
“much of Zipes’s reasoning [was] simply inapplicable to the case at hand.”
Personhuballah v. Alcorn, 239 F. Supp. 3d 929, 939 (E.D. Va. 2017).
From the district court’s order awarding attorneys fees and costs, the Intervening
Congressmen filed this appeal, contending that the district court misinterpreted Zipes and
that the assessment of roughly $480,000 in fees and costs against them must be reversed.
While the plaintiffs contend that the district court ruled correctly, they argue
conditionally that if the assessment of fees against the Intervening Congressmen is
reversed, the total award of $1.35 million should be assessed against the Commonwealth.
Understandably, the Commonwealth objects to the plaintiffs’ suggestion, arguing that it
should not be held responsible for any fees incurred by reason of the Intervening
Congressmen’s actions.
II
After awarding plaintiffs, as prevailing parties, their fees and costs of roughly
$1.35 million under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e), the district court
assessed the Intervening Congressmen with payment of roughly $480,000 of that amount.
The Intervening Congressmen contend that the district court erred because, under Zipes,
they are not responsible to the plaintiffs for any portion of their attorneys fees inasmuch
as the Intervening Congressmen were not alleged to be wrongdoers and the plaintiffs
could not have obtained from them the relief requested in the complaint. See Zipes, 491
U.S. at 761. Specifically, the Intervening Congressmen direct attention to the categorical
rule adopted by Zipes that a district court should award “attorney’s fees against losing
9
intervenors only where the intervenors’ action was frivolous, unreasonable, or without
foundation.” Id.
The plaintiffs contend:
[R]esolution of this appeal may be of keen concern to [the Intervening
Congressmen] and the [Commonwealth], but it is of little concern to [the
plaintiffs]. Regardless of the disposition of this appeal, the Panel awarded
[the plaintiffs] a total award of $1,346,571.74. If [the Intervening
Congressmen] are not held responsible for a portion of that total award,
then [the plaintiffs] are entitled to a full recovery against the
[Commonwealth] — who chose not to appeal the overall fee award.
Nonetheless, the plaintiffs argue further that the Intervening Congressmen “had cast
themselves as the functional equivalent of a defendant, dramatically run up [the
plaintiffs’] fees, and done so not in pursuit of any cognizable legal interest . . . but to
stand in the schoolhouse door in a futile attempt to block the remedy of a bald racial
gerrymander.” They conclude that the Intervening Congressmen, by reason of their
action, “were not ‘innocent’ in the relevant sense” and therefore fell outside the general
rule established in Zipes.
The Commonwealth contends that the dispute is between the Intervening
Congressmen and the plaintiffs “over which of them is responsible for Plaintiffs’ fees
incurred after [the Commonwealth] stopped defending [the Third District]. The outcome
of that dispute does not affect [the Commonwealth’s] liability for the fees previously
awarded against [it], a judgment that [the Commonwealth] did not appeal and that [the
Commonwealth has] already paid and satisfied.” Thus, it argues that if Zipes is
applicable, then the plaintiffs themselves must bear the fees and costs that they incurred
in litigating against the Intervening Congressmen. “And if Zipes does not apply, then
10
[the Intervening Congressmen] must bear Plaintiffs’ fees and costs. In neither case would
[the Commonwealth] bear any increased liability.”
The principal dispute in this appeal thus turns on whether Zipes prohibits an
attorneys fees award under § 1988(b) and § 10310(e) against intervening defendants in
the circumstances presented.
Under the traditional American rule, the prevailing party in a suit is not entitled to
recover reasonable attorneys fees and costs from the losing party. See Alyeska Pipeline
Serv. Co., v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). But Congress has provided
exceptions to that rule with certain fee-shifting statutes, such as 42 U.S.C. § 1988(b) and
52 U.S.C. § 10310(e). Section 1988(b) provides as relevant: “In any action or
proceeding to enforce a provision of . . . [§] 1983, . . . the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee as part of the costs.” And
§ 10310(e) provides similarly: “In any action . . . to enforce the voting guarantees of the
[F]ourteenth . . . [A]mendment, the court, in its discretion, may allow the prevailing party
. . . a reasonable attorney’s fee, reasonable expert fees, and other reasonable litigation
expenses as part of the costs.” Both provisions leave awards to the discretion of the
court, which the Supreme Court noted in Zipes has limits, 491 U.S. at 758 (“[I]n a system
of laws discretion is rarely without limits”), and the discretion afforded a court in those
statutes in particular is subject to the limitation articulated in Zipes.
The Zipes Court announced a “categorical” rule that “district courts should . . .
award Title VII attorney’s fees against losing intervenors only where the intervenors’
action was frivolous, unreasonable, or without foundation,” 491 U.S. at 761, and it noted
11
that the rule is applicable to similar fee-shifting statutes, such as 42 U.S.C. § 1988, id. at
758 n.2 (noting, “the language of § 706(k) is substantially the same as . . . 42 U.S.C.
§ 1988”); see also Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983) (noting that 42
U.S.C. § 1988 was “patterned upon” § 706(k) of the Civil Rights Act of 1964 (which was
the provision addressed in Zipes)). The Zipes rule is grounded on the policy goals of fee-
shifting statutes generally — (1) that by having the “wrongdoers pay,” the incentives
under statutes containing a fee-shifting provision “will not be reduced by the prospect of
attorney’s fees that consume the recovery,” and (2) that would-be wrongdoers will be
deterred. Zipes, 491 U.S. at 761–62. The Court explained further that “[a]ssessing fees
against blameless intervenors” — that is, those who “have not been found to have
violated anyone’s civil rights” — “is not essential” to the purposes of fee shifting. Id. As
the Court summarized:
Awarding attorney’s fees against such . . . intervenor[s] would further
neither the general policy that wrongdoers make whole those whom they
have injured nor Title VII’s aim of deterring employers from engaging in
discriminatory practices.
Id. at 762.
Under the categorical rule announced in Zipes, it is apparent that the Intervening
Congressmen in this case were “blameless” intervenors (i.e., persons not charged with
violating the law) and therefore should not have been assessed attorneys fees under the
fee-shifting statutes in question. See Zipes, 491 U.S. 762 (emphasizing the “crucial
connection between liability for violation of federal law and liability for attorney’s fees
under federal fee-shifting statutes”). The plaintiffs sued the Commonwealth for enacting
12
an unconstitutional law — namely, H.B. 251 — delineating Virginia’s congressional
districts, including the Third District, and they sought relief against the Commonwealth,
the only party from whom they could obtain relief. The Intervening Congressmen, on the
other hand, were not alleged to have carried out the unconstitutional delineation of
congressional districts — they were federal representatives who were not charged with
any responsibility in the enactment of the state law. Moreover, the relief that the
plaintiffs sought could not have been obtained from the Intervening Congressmen, who
were legally unaffiliated with the government of the Commonwealth and therefore
incapable of adopting a new redistricting plan, as the plaintiffs requested. Accordingly,
the Intervening Congressmen were not responsible for the plaintiffs’ fees. As the
Supreme Court aptly noted:
[T]he party legally responsible for relief on the merits . . . is the party who
must pay the costs of litigation . . . and it is clearly the party who should
also bear fee liability under § 1988.
Zipes, 491 U.S. at 763 (second omission in original) (quoting Kentucky v. Graham, 473
U.S. 159, 164 (1985)).
Moreover, even though the Intervening Congressmen defended the
Commonwealth’s 2012 law and presented the same arguments as the Commonwealth in
doing so — a fact important to the district court — that fact does not mean that “the two
must be treated alike for purposes of fee assessments.” Zipes, 491 U.S. at 765. As Zipes
made clear, that defendants and intervening defendants make the same arguments in an
attempt to defeat plaintiffs’ positions does not control the award of fees. Id. As such, the
13
Intervening Congressmen, in pursuing their own independent interests, were “blameless”
of the liability asserted by the plaintiffs against the Commonwealth.
For these reasons and because no party contends that the Intervening
Congressmen’s actions were frivolous, unreasonable, or without foundation, the
Intervening Congressmen should not, under Zipes, have been assessed with payment of
any of the attorneys fees and costs awarded to the plaintiffs.
In concluding otherwise, the district court created a construct of Zipes that is
simply not justified, either by its holding or its reasoning. The district court in essence
collapsed the status and purpose of the Congressmen as intervenors with the status of the
Commonwealth as defendant, overlooking (1) that the U.S. Congressmen did not enact
the unconstitutional state law; (2) that 42 U.S.C. § 1983 and the Equal Protection Clause
could not provide the plaintiffs relief against the Intervening Congressmen for creating an
unconstitutional congressional district; and (3) that the Intervening Congressmen
intervened to protect their own distinct interests in constituent relationships. In this
manner, the court failed to recognize that the Intervening Congressmen could not incur
liability simply because they intervened and defended the law.
Turning in particular to the district court’s reasoning, the court stated that the
Intervening Congressmen “had the ability to grant Plaintiffs’ relief on the merits by
simply dropping [their] defense,” Personhuballah, 239 F. Supp. 3d at 940 (emphasis in
original), and that “[w]hen they failed to do so, ‘blame,’ as Zipes defined it, could only lie
with [the Intervening Congressmen], who fully and willingly defended the law,” id. at 241
(emphasis added). This is a curious proposition — that by defending a practice or a law,
14
intervenors thereby become wrongdoers responsible for that practice or law. More
importantly, this clearly misses the point of Zipes, which applied its categorical rule to
intervenors who were “blameless” under Title VII — i.e., intervenors who had not been
found to have committed wrongdoing under the relevant statute. The Intervening
Congressmen in this case were indeed blameless, as they were never accused of enacting
or enforcing an unconstitutional law, nor were they found to have violated § 1983 and the
Equal Protection Clause, under which the plaintiffs brought their action against the
Commonwealth.
In every lawsuit in which there is a prevailing Title VII plaintiff there will
also be a losing defendant who has committed a legal wrong. That
defendant will . . . be liable for all of the fees expended by the plaintiff in
litigating the claim against him, and that liability alone creates a substantial
added incentive for victims of Title VII violations to sue.
Zipes, 491 U.S. at 761. Clearly, simply engaging in the act of litigating and taking a
position opposed to the plaintiffs are not violations of § 1983 and the Constitution so as
to justify a fee award.
Nonetheless, the district court pressed further, concluding that the Intervening
Congressmen were liable for attorneys fees based on a principle that “when intervenors
functionally replace the original defendants in the defense of an unconstitutional law,
they may be held liable for attorney’s fees.” Personhuballah, 239 F. Supp. 3d at 942
(emphasis added). This proposition, however, lacks any support from Zipes, which did
not focus on who was defending a law, but rather on who was liable under the law — i.e.,
“legally responsible for relief on the merits,” 491 U.S. at 763 (quoting Graham, 437 U.S.
at 164). Continuing this argument in another form, the district court reasoned that
15
because the Intervening Congressmen advanced the same arguments and sought to obtain
the same results as the Commonwealth, they were “functionally” defendants who could
therefore not seek the benefit of the Zipes holding. But Zipes rejected this precise
argument, explaining,
Of course, an intervenor may sometimes raise an argument that brings into
question not merely the appropriateness of the remedy but the plaintiff’s
very entitlement to relief. Here, for example, petitioner advanced one
argument that would have prevented the District Court’s approval of any
relief for Subclass B respondents. But that an intervenor can advance the
same argument as a defendant does not mean that the two must be treated
alike for purposes of fee assessments.
Zipes, 491 U.S. at 765. It is not the parallel advancement of positions that determines
whether the Zipes principle applies; it is whether the intervenors are wrongdoers from
whom plaintiffs could obtain relief. In the end, Congress shifted attorneys fees to
wrongdoers under 42 U.S.C. § 1988 and 52 U.S.C. § 10310 to give effect to its policy of
having those wrongdoers make the victim whole, including the payment of his attorneys
fees, and of deterring other would-be wrongdoers from violating the law. Id. Consistent
with this policy objective, “section 1988 simply does not create fee liability where merits
liability is nonexistent.” Graham, 473 U.S. at 168.
Finally, the district court concluded that the Intervening Congressmen were not
blameless because they somehow were responsible “as representatives of the sovereign
will of the Commonwealth.” Personhuballah, 239 F. Supp. 3d at 941. More fully, the
court stated, “[T]he defendants, whether they were the Attorney General, the individuals
on the Board of Elections, or the intervening Representatives, were . . . ‘liable’ in their
capacity as representatives of the sovereign will of the Commonwealth,” id. (emphasis
16
added), because as the “sole defenders” of H.B. 251, the Intervening Congressmen were
“capable of fully granting Plaintiffs’ relief on the merits, and they therefore assumed the
risk of being ‘liable on the merits’ for the unconstitutional borders of the District as
well,” id. at 942. With this proposition that the Intervening Congressmen were
representatives of the “will of the Commonwealth,” the district court proceeded to step
around the clear principle that U.S. Congressmen, who neither enact nor enforce a state
law, cannot be held liable for a law’s defect merely because they defend it. This is
simply a twist on the court’s unsupported proposition that engaging in the litigation as
intervenors in opposition to the plaintiffs somehow violates § 1983 and the Constitution.
In reaching its construction of Zipes, the district court relied mainly on two cases,
both of which are materially distinguishable because the intervening defendants in those
cases were, as state actors, defending the challenged statute on behalf of the State. See
Planned Parenthood of Cent. N.J. v. Att’y Gen. of N.J., 297 F.3d 253, 263–65 (3d Cir.
2002) (declining to apply Zipes where the New Jersey legislature intervened to defend the
constitutionality of a statute that it enacted when the New Jersey Attorney General
declined to do so); Mallory v. Harkness, 923 F. Supp. 1546, 1552–53 (S.D. Fla. 1996),
aff’d, 109 F.3d 771 (11th Cir. 1997) (per curiam) (distinguishing Zipes in a case where
Florida’s Attorney General intervened to defend a Florida law imposing minority quotas
on appointees to the State’s judicial nominating commission where officials of the state
bar association refused to defend it). Thus, in both cases, the intervening party was a
representative of the State responsible for enacting or enforcing the challenged statute,
not an independent third party who could not be charged with liability. We agree with
17
Judge Payne’s dissenting opinion below that these cases “stand for the common-sense
principle that, where an unconstitutional statute is involved, the ‘blameworthy’ party
under Zipes is the state that enacted the statute.” Personhuballah, 239 F. Supp. 3d at 961
(Payne, J., dissenting).
At bottom, we disagree with the district court and find no grounds in Zipes, or
elsewhere, for not applying its categorical rule. Since no party has suggested that the
Intervening Congressmen have acted frivolously, unreasonably, or without foundation,
we conclude that they cannot be held liable for any of the plaintiffs’ attorneys fees or
costs under either 42 U.S.C. § 1988(b) or 52 U.S.C. § 10310(e).
III
The plaintiffs argue that regardless of how we rule, they are, as prevailing
plaintiffs, entitled to the full $1.35 million amount awarded by the district court, and if
the Intervening Congressmen are not held to pay a portion, then the Commonwealth
should pay the entire amount. The Commonwealth, on the other hand, argues that they
are not responsible for any amount attributable to the Intervening Congressmen’s actions,
and that if the Intervening Congressmen are not held to pay a portion of the award, the
plaintiffs should bear that portion under the default American rule that each party bears
its own attorneys fees.
Our decision in Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir.
1994), is instructive on this issue. In Rum Creek, we stated, “Under the Supreme Court
decision in Zipes, we are required to hold that the intervention-related fees and expenses
18
in question here are not recoverable under 42 U.S.C. § 1988 by a prevailing plaintiff
against a losing defendant.” Id. at 178 (emphasis added). Specifically at issue in Rum
Creek were fees incurred by the plaintiff in opposing the entry of the intervenor-
defendants into the action. But we see no reason not to apply that holding also to the
intervention-related fees incurred in actually litigating against the intervenors’ positions.
Indeed, the language in Zipes supports this conclusion. See Zipes, 491 U.S. at 761
(noting that, under its categorical rule, the defendant will “be liable for all of the fees
expended by the plaintiff in litigating the claim against him,” i.e., the defendant only
(emphasis added)); see also id. at 767 (Blackmun, J., concurring in the judgment) (noting
that the majority “tacitly assumes that the defendant’s fee liability goes no further” than
fees incurred litigating against him).
Accordingly, we conclude that the Commonwealth cannot be held liable for
attorneys fees and costs incurred by the plaintiffs in litigating against the entry of the
Intervening Congressmen or against the Intervening Congressmen’s positions. Under the
traditional American rule, the plaintiffs must bear those intervention-related fees.
We therefore vacate the district court’s order of March 3, 2017, awarding
attorneys fees and costs for reconsideration of the plaintiffs’ petitions in light of this
opinion. On remand, the district court should award the plaintiffs attorneys fees and costs
only in an amount for which the court, in its discretion, finds the Commonwealth to be
responsible under 42 U.S.C. § 1988(b) and 52 U.S.C. § 10310(e).
VACATED AND REMANDED
19