United States District Court, E.D. North Carolina, Western Division
C. DEVER III CHIEF UNITED STATES DISTRICT JUDGE.
cases in this consolidated action, plaintiffs move for
attorneys' fees and litigation expenses under 42 U.S.C.
§ 1988, expert fees under 52 U.S.C. § 10310(e), and
costs under Federal 1 Rule of Civil Procedure 54(d) and 28
U.S.C. § 1920. See [D.E. 118, 119] (No. 5:15-CV-156-D);
[D.E. 125, 126] (No. 5:13-CV -607-D). Defendant Wake County Board
of Elections ("defendant") has responded in
opposition [D.E. 123], and plaintiffs have replied [D.E.
124]. As explained below, the court grants plaintiffs'
motions in part and denies them in part.
challenged the North Carolina General Assembly's
("General Assembly") 2013 redistricting plan for
electing the non-partisan Wake County School Board and the
General Assembly's 2015 redistricting plan for electing
the partisan Wake County Board of Commissioners. The
redistricting plan for the Wake County School Board is
contained in Session Law 2013-110. The redistricting plan for
the Wake County Board of Commissioners is contained in
Session Law 2015-4 and is identical to the plan in Session
Law 2013-110. See Tr. Ex. 438 (S.L. 2013-110, §
5); Tr. Ex. 439 (S.L. 2015-4, § 1 . (c)-. (d)). The
court has discussed the intricacies of these plans, [D.E.
104] 5-6, and summarizes the essence of the litigation
sufficiently to resolve the pending motions.
these actions, plaintiffs contended that the redistricting
plans in Session Law 2013 -110 and Session Law 2015-4
(collectively, "Session Laws") violate the
one-person, one-vote principle in the Equal Protection Clause
of the Fourteenth Amendment of the United States Constitution
and Article I, § 19 of the North Carolina Constitution.
As for the School Board redistricting plan, plaintiffs
contended that the plan resulted from the General
Assembly's partisan desire (1) to disadvantage incumbents
on the non-partisan Wake County Board of Education
("Wake County Board of Education" or "Wake
County School Board") who are registered Democrats who
support "progressive" education policies and (2) to
favor suburban and rural voters over urban voters. As for the
Board of Commissioners redistricting plan, plaintiffs
contended that the plan resulted from the General
Assembly's partisan desire (1) to favor suburban and
rural voters over urban voters and (2) to favor voters who
favor Republican candidates over voters who favor Democratic
candidates on the Wake County Board of Commissioners.
Plaintiffs also contended that the 2015 General Assembly
racially gerrymandered District 4 in the Board of
Commissioners redistricting plan and thereby violated the
Equal Protection Clause of the Fourteenth Amendment of the
United States Constitution.
March 17, 2014, United States District Judge Terrence W.
Boyle dismissed the challenge to the School Board
redistricting plan for lack of subject-matter jurisdiction
and for failure to state a claim. See [D.E. 38] 9
(No. 5:13-CV-607-D). Plaintiffs appealed, and on May 27,
2015, the United States Court of Appeals for the Fourth
Circuit affirmed in part, reversed in part, and remanded the
case. See Wright v. North Carolina. 787 F.3d 256
(4th Cir. 2015). The court upheld dismissal of the State of
North Carolina and several proposed state officials under the
Eleventh Amendment, but held that plaintiffs adequately
pleaded that Session Law 2013-110 violated the one-person,
one-vote principle. See id.
2015, both cases were reassigned to the undersigned. See
[D.E. 27] (No. 5:15-CV-156-D); [D.E.49] (No.5:13-CV-607-D).
The court thereafter consolidated the cases.
See[D.E.36] (No. 5:15-CV-156-D); [D.E. 53] (No.
December 16-18, 2015, the court held a bench trial in this
consolidated action. On February 26, 2016, the court found
that plaintiffs had not proven their case, entered judgment
for the Wake County Board of Elections, and declined to
enjoin the Wake County Board of Elections from administering
elections under the challenged redistricting plans.
See [D.E. 64, 65]. Plaintiffs appealed. See [D.E.
1, 2016—after the Supreme Court's intervening
decision in Harris v. Arizona Independent Redistricting
Commission. 136 S.Ct. 1301 (2016)—the Fourth
Circuit, in a 2-1 decision, resolved the appeal in this case.
The Fourth Circuit unanimously rejected plaintiffs'
racial gerrymandering claim. See Raleigh Wake Citizens
Ass'n v. Wake Cty. Bd. of Elections, 827 F.3d 333,
352-53 (4th Cir. 2016). As for plaintiffs' one-person,
one-vote claim, the Fourth Circuit applied Harris
and found that this case was the "rare[ ]" and
"unusual" case referenced in Harris.
Id. at 351. Accordingly, the Fourth Circuit held
that the plans violated the one-person, one-vote principle in
the United States Constitution and the North Carolina
Constitution. Id. at 3 51-52. The Fourth Circuit
remanded "with instructions to enter immediately
judgment for Plaintiffs, granting both declaratory relief and
a permanent injunction, as to the one person, one vote
claims." Id. at 353-54 (footnote omitted). The
Fourth Circuit added that it saw "no reason why the
November 2016 elections should proceed under the
unconstitutional plans we strike down today."
Id. at 354 n. 13.
than issue its mandate immediately, the Fourth Circuit
scheduled the mandate to issue on July 22, 2016. See [D.E.
104] 9. In anticipation of that date and in order to
facilitate prompt remedial proceedings so that the November
2016 elections could take place as scheduled, this court
issued an order on July 8, 2016, requesting certain
information from the parties, the legislative leaders of the
General Assembly, and the North Carolina State Board of
Elections. See [D.E. 78]. Specifically, this court asked the
parties and the legislative leaders to address the mandate
rule, the principles governing any court-ordered remedial
plan, and a schedule for devising, considering, and adopting
any court-ordered remedial plan. See Id. at
14, 2016, the Wake County Board of Elections petitioned for
rehearing en banc. On that same date, the Fourth Circuit
stayed the mandate pending a ruling on the petition.
plaintiffs' response to the court's July 8, 2016
order requesting views concerning a remedy, plaintiffs
contended that once the mandate issues, the court should
enjoin the use of the statutes. See [D.E. 82] 2. Plaintiffs
also contended that once the mandate issues, "unless and
until the North Carolina General Assembly enacts other
redistricting plans or methods of election, the State Board
of Elections and the . . . Wake County Board of Elections
are legally obligated to enforce the election system
previously in place." Id.
26, 2016, the Fourth Circuit denied the petition for
rehearing en banc On July 27, 2016, this court notified the
parties, the North Carolina State Board of Elections, and the
legislative leaders that this court would hold a status
conference on August 2, 2016, to discuss the remedy. See [D
.E. 86]. On August 2, 2016, this court held a status
conference. On August 3, 2016, the mandate issued. See [D.E.
August 4, 2016, in accordance with the Fourth Circuit's
mandate, the court declared that the population deviations in
the redistricting plans in Session Law 2013 -110 and Session
Law 2015-4 violate the one-person, one-vote-principle in the
equal protection clauses of the Fourteenth Amendment and
Article I, § 19 of the North Carolina Constitution. See
August 9, 2016, this court issued its remedial order. C.f.
Raleigh Wake Citizens Ass'n, 827 F.3d at 354 n.
13. The court's remedial order enjoined the use of the
population deviations in the BOE and BOCC districts in the
Session Laws. See [D.E. 104] 6. The court did not declare any
other provisions of the Session Laws to be unconstitutional.
court's remedial order imposed a court-ordered interim
election plan for 2016, but did not reinstate the entire 2011
redistricting plan and election scheme that preceded the
Session Laws, despite plaintiffs' insistence to the
contrary. See [D.E. 104] 36-37. The court's remedial
order used the districts from the 2011 plan, but included an
overall interim system of election for 2016 that largely
tracked the policy decisions reflected in the Session Laws.
court's remedial order prohibited use of the population
deviations and imposed a temporary, court-ordered
redistricting plan that was far more limited than the relief
plaintiffs sought. Plaintiffs sought an injunction that
declared the Session Laws unconstitutional in their entirety
and reverted to the method of election for the BOE and BOCC
under the 2011 plan. See [D.E. 1 ] 22 (the "Wright
Compl."); [D.E. 22] 17 (the "RWCA Compl.").
Plaintiffs also sought a declaration that, if the General
Assembly failed to promulgate a lawful election method, the
BOE and the BOCC each had the authority to adopt its own
redistricting plan. See Wright Compl. at 22; RWCA Compl. At
the Fourth Circuit's decision in July 2016, plaintiffs
argued that merely enjoining the population deviations did
not provide them the full scope of their requested relief.
Plaintiffs repeatedly insisted that they were entitled to
relief enjoining the Session Laws in their entirety. See
[D.E. 82] 5, 20; [D.E. 87] 2; [D.E. 96] 3. Plaintiffs also
sought relief that reinstated the entire election system
contained within the 2011 redistricting plan-including the
type of districts, length of terms, and timing of elections.
Plaintiffs consistently argued that the court lacked
authority to implement a court-ordered election plan for 2016
and could instead only give effect to the 2011 plan by
operation of law because, according to plaintiffs, that was
the last legally enforceable plan. See [D.E. 82] 7-8; [D.E.
court rejected the scope of injunctive relief plaintiffs
sought. The court also rejected plaintiffs' arguments
that the Fourth Circuit invalidated the Session Laws in their
entirety and that the provisions of the Session Laws were not
severable. [D.E. 104] 23-27. The court also rejected
plaintiffs' arguments that the court lacked the authority
to impose an interim election plan for 2016 and that the
court was required to give effect to the 2011 plan and
electoral scheme. Id. at 18-23. Rather, the court
held that the Session Laws rendered the 2011 plan a
"legal nullity" and that "[w]hen the Fourth
Circuit invalidated the redistricting plan in Session Law
2013-110 and Session Law 2015-4 in Raleigh Wake Citizens
Association, it did not state or intimate that it was
reviving the 2011 plans and electoral scheme."
Id. at 19. The court also rejected plaintiffs'
request that any plan for 2016—including a
court-ordered remedial plan—reflect the election scheme
contained in the 2011 plan. The court also declined
plaintiffs' demand to (1) delay the election of the 2013
BOE seats until 2017, (2) impose four-year terms for those
seats, (3) impose three-year terms for BOE seats up for
election in 2016—returning the BOE to 5-4 staggered
terms and odd-year elections in contravention of the Session
Laws, and (4) have four-year terms for BOCC districts 4, 5,
and 6, which were up for election in 2016.
the court followed many of the policy judgments in the
Session Laws, including holding elections for all BOE members
in 2016 (avoiding staggered terms), imposing even-numbered
terms (avoiding odd-year elections), and keeping the two-year
terms for BOCC districts 4, 5, and 6 to "comport with
the expectations of those candidates who filed to run in
2016." [D.E. 104] 35-37. The court departed from the
Session Laws and shortened the term of election for BOE
members in 2016 from four years to two years.
the remedial phase, plaintiffs filed an emergency petition
for a writ of mandamus and suggested that the Fourth Circuit
remand the case to another United States District Judge in
the district. See Pet. Writ Mandamus, In re: Raleigh Wake
Citizens Ass'n. et al., No. 16-1898, [D.E. 3] (Aug.
8, 2016). Plaintiffs filed their original petition the day
before the court entered its remedial order and then amended
the petition in response to the remedial order. See Am. Pet.
Writ Mandamus, In re: Raleigh Wake Citizens Ass'n. et
al., No. 16-1898, [D.E. 8] (Aug. 9, 2016). Plaintiffs
argued that enjoining the population deviations was not
enough. See Pet. Writ Mandamus, In re: Raleigh Wake
Citizens Ass'n. et al., No. 16-1898, [D.E. 3-1] 12
(Aug. 8, 2016). Rather, plaintiffs sought "complete
relief. . . including relief from the clearly
'pretextual' fruits of the unconstitutional
repeated their arguments that this court lacked the
"power or authority to order any remedial districts,
" Id. at 17, and that "the trial court
should have ordered a remedy reverting back to [the 2011]
plan in its entirety without any changes." Am. Pet. Writ
Mandamus, In re: Raleigh Wake Citizens Ass'n. et
al., No. 16-1898, [D.E. 8-1] 6 (Aug. 9, 2016).
Plaintiffs also argued that the court-imposed interim
election plan for 2016 "significantly differs" from
the election system under the 2011 plan because it imposes
different term lengths for the BOE and BOCC seats, allows for
non-staggered terms, allows all BOE and BOCC seats to be
vacant in 2018, and has no method of election in place after
2016. Id. at 4. Plaintiffs called staggered terms
"an important feature, " argued that having all of
the BOE and BOCC seats up for election in 2018 "directly
conflicts with the prior constitutional election methods,
" and declared that "[a]ll of these problems should
be avoided." Id. at 4-5. Plaintiffs argued that
the "only remedy" was to enjoin the Session Laws in
their entirely and that the emergency petition was
"necessary to assure a proper implementation of [the
Fourth Circuit's] prior rulings." Id. at 6.
On August 10, 2016, before defendant responded, the Fourth
Circuit summarily dismissed plaintiffs' petition for a
writ of mandamus.
are prevailing parties and request $681, 373.95 in
attorneys' fees. The court has discretion whether to
award a reasonable attorneys' fee to a prevailing party
under 42 U.S.C. § 1988. See 42 U.S.C. §
1988(b). A prevailing plaintiff "should ordinarily
recover an attorney's fee unless special circumstances
would render such an award unjust." Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983) (quotation omitted).
argues that special circumstances warrant denying a fee
award. See [D.E. 123] 8-13. The special-circumstances
exception, however, is "narrow" and applies only
on "rare" occasions. Lefemine v. Wideman,
758 F.3d 551, 555-56 (4th Cir. 2014). Having considered the
entire record, the court declines to apply the
special-circumstances exception. See Id. at 555-59.
a reasonable attorneys' fee involves a three-step
process. See McAfee v. Boczar, 738 F.3d 81, 88 (4th
Cir. 2013), as amended (Jan. 23, 2014). First, the court
calculates the lodestar amount (reasonable hourly rate
multiplied by hours reasonably expended). Id. In
making the lodestar determination, the court "appl[ies]
the Johnson/Barber factors." Grissom v. The
Mills Corp., 549 F.3d 313, 320 (4th Cir. 2008)
(citing Johnson v. Ga. Highway Express. Inc., 488
F.2d 714, 717-19 (5th Cir. 1974), and Barber v.
Kimbrell's. Inc., 577 F.2d 216, 226 (4th Cir.
1978)). The Johnson/Barber factors are:
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to
properly perform the legal services rendered; (4) the
attorney's opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney's expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the results
obtained; (9) the experience, reputation, and ability of the
attorney; (10) the undesirability of the case within the
legal community in which the suit arose; (11) the nature and
length of the professional relationship between attorney and
client; and (12) attorneys' fees awards in similar cases.
Id. at 321 (quotation omitted). Second, the court
must then subtract fees for time spent on any unsuccessful
claims unrelated to successful claims. See
Id. Finally, the court "awards some percentage
of the remaining amount, depending on the degree of success
enjoyed by the plaintiff." Id.
third step, a foundational link must exist between the degree
of success and the amount of an attorneys' fee award:
The touchstone of an attorney's fee award "is the
degree of success obtained." See Farrar v.
Hobby, 506 U.S. 103, 114, 113 S.Ct. 566, 121 L.Ed.2d 494
(1992) (quotation omitted); Hensley. 461 U.S. at
436. Although strict proportionality between attorney's
fees and the amount of plaintiffs recovered damages is not
required, see Yohay v. City of Alexandria Employees
Credit Union. Inc., 827 F.2d 967, 974 (4th Cir. 1987),
the court is to award "some percentage of the [requested
attorney's fees], depending on the degree of success
enjoyed by the plaintiff." See City of Aiken
278 F.3d at 337.
O'Fay v. Sessoms & Rogers. P.A., No.
5:08-CV-615-D, 2010 U.S. Dist. LEXIS 80128, at *8-9 (E.D.
N.C. Aug. 9, 2010) (unpublished): see Farrar v.
Hobby, 506 U.S. 103, 114 (1992); Hensley, 461
U.S. at 436; McAfee, 738 F.3d at 88.
asks the court to reduce the requested fee award because the
requested hourly rates and the hours expended are not
reasonable. Defendant also asks the court to exclude the time
plaintiffs spent on the unsuccessful racial gerrymandering
claim and litigation concerning the legislative leaders.
Finally, defendant asks the court to reduce the ...