The Washington Post

The aftermath of Shelby County

In federal court, both parties normally bear their own litigating expenses, a principle known as the “American rule.” But there are some statutes, especially in civil rights cases, that allow prevailing parties to recover attorneys’ fees. About a year after the Supreme Court’s decision in Shelby County invalidating part of the Voting Rights Act, it seems to be the season for decisions about fees.

A few weeks ago, District Judge John Bates denied a request by Shelby County itself. Even though it had won a major constitutional victory in the Supreme Court, Judge Bates concluded that it could not recover. The statute allows fees only “in any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment,” and Judge Bates concluded that Shelby County was not suing to enforce the voting guarantees, but rather to restrict Congress’s power to guarantee voting.

Then on Wednesday, District Judge Rosemary Collyer granted attorneys fees against the state of Texas, even though Texas had successfully had the suit against it dismissed after Shelby County came down. But the opinion does not confront all of the potential legal issues in the case, because Judge Collyer was unsatisfied with Texas’s filing:

This matter presents a case study in how not to respond to a motion for attorney fees and costs. … [R]ather than engage the fee applicants, Plaintiff Texas basically ignores the arguments supporting an award of fees and costs. In a three-page filing entitled “Advisory,” Texas trumpets the Supreme Court’s decision, expresses indignation at having to respond at all, and presumes that the motion for attorney fees is so frivolous that Texas need not provide further briefing in opposition unless requested. Such an opposition is insufficient in this jurisdiction.

I’m not sure whether these decisions are right or wrong, but I thought they might be of interest to federal courts junkies.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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