Shelby County v. Holder Petition for Writ of Certiorari

    No. 15-

In the

Supreme ©curt of tt|E Mntteti States

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

LORETTA E. LYNCH, IN HER OFFICIAL 
CAPACITY AS ATTORNEY GENERAL OF THE 

UNITED STATES, et al,

Respondents.

On P etition for a W rit of Certiorari to the United 
States Court of A ppeals for the D.C. C ircuit

PETITION FOR A WRIT OF CERTIORARI

T homas R. M cCarthy 
Counsel of Record 

W illiam S. Consovoy 
J. M ichael Connolly 
Consovoy McCarthy Park PLLC  
3033 Wilson Boulevard, Suite 700 
Arlington, VA 22201 
(703) 243-9423
tom@consovoymccarthy.com 

Attorneys for Petitioner
Date: November 3, 2015__________________________________
261938

C O U N S E L  PRESS 

(800) 274-3321 • (800) 359-6859

mailto:tom@consovoymccarthy.com


I

QUESTION PRESENTED

Longstanding precedent of this Court holds that 
plaintiffs prevailing in actions under federal civil-rights 
statutes “should ordinarily recover attorney’s fees unless 
special circumstances would render such an award 
unjust,” Newman v. Piggie Park Enterprises, Inc., 390 
U.S. 400,402 (1968), and that prevailing defendants should 
not recover fees unless “the plaintiffs action was frivolous, 
unreasonable, or without foundation,” Christiansburg 
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978). Here, 
Petitioner Shelby County was a prevailing plaintiff in an 
action under Section 14(b) of the Voting Rights Act. See 
Shelby County, v. Holder, 133 S. Ct. 2612 (2013).

The question presented is whether the district court 
can refuse to apply the Piggie Park standard based on 
its value judgment that Congress would not have wanted 
Shelby County to recover its attorney’s fees.



PARTIES TO THE PROCEEDING 
AND RULE 29.6 STATEMENT

Petitioner in this case is Shelby County, Alabama.

Respondents are Loretta E. Lynch, in her official 
capacity as Attorney General of the United States, and 
Earl Cunningham, Harry Jones, Albert Jones, Ernest 
Montgomery, Anthony Vines, William Walker, Bobby 
Pierson, Willie Goldsmith, Sr., Mary Paxton-Lee, Kenneth 
Dukes, Alabama State Conference of the National 
Association for the Advancement of Colored People, and 
Bobby Lee Harris.



in

QUESTION PR E SE N TE D ..............................................i

PARTIES TO THE PROCEEDING AND RULE 
29.6 STATEM ENT.......................................................ii

TABLE OF CONTENTS..................................................iii

TABLE OF APPEN DICES.............................................v

TABLE OF CITED AUTHORITIES........................... vi

PETITION FOR A WRIT OF CERTIORARI...............1

OPINIONS BELOW........................................................... 1

JURISDICTION................................................................. 1

STATUTORY PROVISION INVOLVED.......................1

STATEMENT OF THE C A S E .......................................2

REASONS FOR GRANTING THE PETITION........ 10

I. Review Is Warranted Because The Decision 
Below Conflicts With Piggie Park And Will 
Hinder States And Local Governments 
From Opposing Federal Overreach.................... 14

TABLE OF CONTENTS

Page



IV

Table of Contents

Page
II. R e v ie w  Is W a r r a n te d  To L im it

Christiansburg’s Misguided Countertextual 
Approach To Fee Determinations....................... 20

III. Under A P roper A pplication Of The
G overning Precedent, There Can Be 
No Question That Shelby County Is 
Entitled To Recover Its Fees............................... 25

IV. Shelby County Is Eligible For Fees.....................31

CONCLUSION................................................................. 35



V

TABLE OF APPENDICES

Page
A P P E N D IX  A —  O P IN IO N  OF T H E  

UNITED STATES COURT OF APPEALS 
FOR TH E D IS T R IC T  OF CO LU M BIA, 
DATED SEPTEMBER 1, 201 5 ................................ la

A P P E N D I X  B —  M E M O R A N D U M  
O PIN ION  OF TH E U N IT E D  STATES 
DISTRICT COURT FOR THE DISTRICT 
OF COLUMBIA, FILED MAY 28, 2014................41a



TABLE OF CITED AUTHORITIES

Page

C A SE S

Allen v. State Bd. of Elections,
393 U.S. 544 (1969)...................................................... 29

Andrews v. Koch,
554 F. Supp. 1099 (E.D.N.Y. 1983)............................ 15

Bondv. United States,
131 S. Ct. 2355(2011)................................................ 33

Buckhannon Bd. & Care Home, Inc. v.
West Virginia Dept, of Health 
and Human Resources,
532 U.S. 598(2001)....................................................... 21

Campaign for a Progressive Bronx v. Black,
631 F. Supp. 975 (S.D.N.Y. 1986).................................15

Carnegie v. Household Int’l, Inc.,
376 F.3d 656 (7th Cir. 200 4 )...................................... 18

Castro County, Tex. v. Crespin,
101 F.3d 121 (D.C. Cir. 1996)..................................17,18

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978)..............................................passim

City ofBoerne v. Flores,
521 U.S. 507 (1997).......................................................26



mi

Commissioners Court of Medina County, Texas 
v. United States,
683 F.2d 435 (D.C. Cir. 1982)................................ 7,17

Coyote v. Roberts,
502 F. Supp. 1342 (D.R.1.1980)................................ 19

Crawford v. Marion County Election Board,
553 U.S. 181 (2008).......................................................27

Davis v. Abbott,
991 F. Supp. 2d 809 (W.D. Tex. 2014)........................ 16

Davis v. Perry,
No. ll-cv-788, 2011 WL 6207134
(W.D. Tex. Nov. 23, 2011)............................................. 14

Doe v. Boston Pub. Sch.,
358 F.3d 20 (1st Cir. 2004).......................................... 19

Dole Food Co. v. Patrickson,
538 U.S. 468 (2003).......................................................22

Donnell v. United States,
682 F.2d 240 (D.C. Cir. 1982).................................... 17

Elgin v. Dep’t of Treasury,
132 S. Ct. 2126 (2012).................................................30

Florida v. United States,
885 F. Supp. 2d 299 (D.D.C. 2012)

~ ■ Cited Authorities

Page

14, 27



mn

Cited Authorities

Fogerty v. Fantasy, Inc.,
510 U.S. 517 (1994)........................................... 6, 23, 24

Fox v. Vice,
131 S. Ct. 2205(2011)...................................................28

Georgia v. Ashcroft,
539 U.S. 461 (2003)...................................................... 27

Hastert v. III. State Bd. of Election Comm’rs,
28 F.3d 1430 (7th Cir. 1993).........................................19

Herrington v. County of Sonoma,
883 F.2d 739 (9th Cir. 1989)................................ 19, 34

Indep. Fed’n of Flight Attendants v. Zipes,
491 U.S. 754 (1989).....................................19, 20, 27, 28

Kulkarni v. Nyquist,
446 F. Supp. 1274 (N.D.N.Y. 1977)............................ 29

Lavin v. Husted,
764 F.3d 646 (6th Cir. 2014)................................  28, 29

Lytle v.
Commissioners of Election of Union County,
541 F.2d 421 (4th Cir. 1976).........................................15

Page

Maloney v. City of Marietta,
822 F.2d 1023 (11th Cir. 1987) 19



IX

Cited Authorities

NAACP v. City of Dover, Del.,
123 F.R.D. 85 (D. Del. 1988)...................................... 15

Newman v. Piggie Park Enterprises, Inc.,
390 U.S. 400 (1968)............................................ passim

Northwest Austin v. Holder,
557 U.S. 193(2004).......................................................27

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000).......................................................27

Shelby County v. Holder,
43 F. Supp. 3d 47 (D.D.C. 2014).................................. 17

Shelby County v. Holder,
133 S. Ct. 2612 (2013)........................................passim

Shelby County v. Holder,
679 F.3d 848 (D.C. Cir. 2012)................................ 3, 34

Shelby County v. Holder,
811 F. Supp. 2d 424 (D.D.C. 2011).......................... 2,14

Shelter Framing Corp. v.
Pension Benefit Guar. Corp.,
705 F.2d 1502 (9th Cir. 1983).......................................30

South Carolina v. Katzenbach,
383 U.S. 301 (1966).........................................................3

Page



Texas v. United States,
798 F.3d 1108(2015)...............................................16,18

Texas v. United States,
887 F. Supp. 2d 133 (D.D.C. 2012)................ 14,16,17

Torres v. Sachs,
538 F.2d 10 (2d Cir. 1976)...........................................15

West Virginia Univ. Hosps., Inc. v. Carey,
499 U.S. 83 (1991)......................................................... 22

Williams v. Board of Com’rs of McIntosh County,
938 F. Supp. 852 (S.D. Ga. 1996)................................ 15

STATUTES AND OTHER AUTHORITIES

U.S. Const. Amend. XIV, § 1 ..........................................32

U.S. Const. Amend. XIV, § 2 ..........................................32

U.S. Const. Amend. XIV, § 5 .................................... 14, 32

U.S. Const. Amend. XV, § 1 .............................................32

U.S. Const. Amend. XV, § 2 ...................................... 14, 32

U.S. Const., Art. VI, cl. 3 .................................................26

5U.S.C. §5596...................................................................30

X

Cited Authorities

Page



XI

Cited Authorities

Page
28 U.S.C. § 1254(a)............................................................ 1

42 U.S.C. § 2000e-5(k).................................................... 21

52 U.S.C. § 10303(b)...............................................passim

52 U.S.C. § 10304.....................................................passim

52 U.S.C. § 10310(b)........................................  2,25, 29, 30

52 U.S.C. § 10310(e).................................................passim

Bipartisan Campaign Reform  A ct o f 2002,
Pub. L. No. 107-155,116 Stat. 81 (2002)................. 30

Black’s Law Dictionary 621 (4th ed. 1968)................... 32

S. Wilborn, Public Pensions & the Uniform 
Management of Public Employee Retirement 
Systems Act, 51 Rutgers L. Rev. 141 (1998)............ 23

To Enforce the 15th Amendment to the Constitution 
of the United States: Hearing on S.1561 Before 
the S. Comm, on the Judiciary, 89th Cong.
(1965) .29



1

PETITION FOR A WRIT OF CERTIORARI

Petitioner Shelby County, Alabama, submits this 
petition for a writ of certiorari to review the judgment of 
the United States Court of Appeals for the D.C. Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals 
for the D.C. Circuit is available at 2015 W L 5099964 
and is reproduced in the Appendix (“App.” ) at la-40a. 
The opinion of the United States District Court for the 
District of Columbia is reported at 43 F. Supp. 3d 47 and 
is reproduced at App. 41a-88a.

JURISDICTION

The United States Court of Appeals for the D.C. 
Circuit rendered its decision on September 1, 2015. App. 
la. This Court has jurisdiction under 28 U.S.C. § 1254(a).

STATUTORY PROVISION INVOLVED

Section 14(e) of the Voting Rights Act, 52 U.S.C. 
§ 10310(e), provides:

In 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.



2

STATEMENT OF THE CASE

1. On April 27, 2010, Shelby County brought an 
action against the Attorney General of the United States 
(“Attorney General” or “Government” ) under Section 
14(b) of the Voting Rights Act (“VRA”) challenging the 
constitutionality of Section 4(b) and Section 5 of the 
VRA, 52 U.S.C. §§ 10303(b), 10304, on the grounds that 
those provisions exceeded Congress’s authority under 
the Fourteenth and Fifteenth Amendments. See Dkt. 1 
(Complaint HU 1,38,42,44). Because Shelby County was a 
“covered” jurisdiction under Section 4(b), it was required 
to submit all voting changes (no matter how minor) for 
“preclearance” under Section 5. This obligation imposed 
great costs on Shelby County and its citizens— both in 
terms of expenditure of county resources and the intrusion 
on autonomy and self-government. Shelby County argued 
that neither Section 4(b) nor Section 5 was “appropriate” 
enforcement legislation and sought a declaration that these 
provisions were unconstitutional under the Fourteenth 
and Fifteenth Amendments, along with a permanent 
injunction, reasonable attorney’s fees and costs, and all 
other appropriate relief.

Several groups and individuals (“ D efendant- 
Intervenors” ) sought to intervene early in the action, 
which the district court allowed. All parties thereafter 
filed cross-motions for summary judgment on the merits 
of Shelby County’s claims. On September 21, 2011, the 
district court issued an opinion and order granting the 
Government’s and Defendant-Intervenors’ cross motions 
for summary judgment, and denying Shelby County’s 
motion for summary judgment. Shelby County v. Holder, 
811 F. Supp. 2d 424 (D.D.C. 2011).



3

On appeal, the D.C. Circuit issued a 2-1 decision 
affirming the district court’s judgment. Shelby County 
v. Holder, 679 F.3d 848 (D.C. Cir. 2012). Judges Tatel 
and Griffith found both Sections 4(b) and 5 constitutional, 
holding that the evidence of voting discrimination in 
covered jurisdictions justified Section 5’s remedial remedy 
and Section 4(b)’s coverage formula. Id. at 884. Senior 
Judge Williams dissented. He found that Section 4(b) 
exceeded Congress’s authority under the Fourteenth 
and Fifteenth Amendments because its coverage formula 
was not responsive to current conditions in the covered 
jurisdictions and was not “congruent and proportional” to 
the violations it sought to remedy. Id. at 885.

The Supreme Court reversed in a 5-4 decision. Shelby 
County v. Holder, 133 S. Ct. 2612 (2013). The Court accepted 
Shelby County’s argument that Section 4(b)’s coverage 
formula was not rational in theory and thus held that the 
formula was not “appropriate” enforcement legislation 
under the Fourteenth and Fifteenth Amendments.

Writing for the Court, Chief Justice Roberts explained 
that the Court previously had upheld the VRA because 
the coverage formula was rational when enacted in 1965. 
Id. at 2627-28 (citing South Carolina v. Katzenbach, 
383 U.S. 301, 309 (1966)). Section 4(b) had targeted the 
jurisdictions that “shared two characteristics: ‘the use of 
tests and devices for voter registration, and a voting rate 
in the 1964 presidential election at least 12 points below 
the national average.’” Id. at 2625. Katzenbach upheld the 
formula as “rational in both practice and theory” because 
“ [i]t accurately reflected those jurisdictions uniquely 
characterized by voting discrimination on a pervasive 
scale, linking coverage to the devices used to effectuate 
discrimination and to the resulting disenfranchisement.” 
Id.



4

But whereas Congress in 1965 “ looked to cause 
(discriminatory tests) and effect (low voter registration 
and turnout), and tailored the remedy (preclearance) to 
those jurisdictions exhibiting both,” Congress in 2006 
relied on “a formula based on 40-year-old facts having 
no logical relation to the present day.” Id. at 2627-29. 
Moreover, Congress sought to prevent vote dilution, 
yet continued to employ a formula tied to ballot access. 
Id. Thus, the coverage formula was no longer rational 
in theory and thus was not “appropriate” enforcement 
legislation.

Given this holding with respect to Section 4(b), the 
Court declined to reach Section 5’s constitutionality. 
See id. at 2631. Justice Thomas concurred, writing 
separately to explain why he would have found Section 
5 unconstitutional as exceeding Congress’s enforcement 
power under the Fourteenth and Fifteenth Amendments. 
Id. at 2631-32. Justice Ginsburg dissented, arguing that 
the evidence assembled by Congress justified the exercise 
of remedial power under the Reconstruction Amendments 
to subject the covered jurisdictions to preclearance. See 
id. at 2632-52.

2. On remand, Shelby County timely filed a motion for 
attorney’s fees. Shelby County argued that it was eligible 
for and entitled to fees because it was the “prevailing 
party” in an action to “enforce the voting guarantees of 
the Fourteenth and Fifteenth Amendment.” 52 U.S.C. 
§ 10310(e).

The district court denied Shelby County’s fee request. 
The court first examined whether Shelby County was 
eligible for fees under Section 14(e) of the VRA. The



5

court found Section 14(e) susceptible to three possible 
interpretations concerning the parties who might be 
eligible for fees: (1) that only plaintiffs that filed a 
lawsuit seeking “to enforce the voting guarantees of the 
fourteenth or fifteenth amendment” would be eligible for 
attorney’s fees; (2) that any party could be eligible for 
attorney’s fees as long as that party was the party seeking 
to enforce “ the voting guarantees of the fourteenth or 
fifteenth amendment”; or (3) that any prevailing party 
would be eligible for attorney’s fees as long as the lawsuit 
could be described as “an action or proceeding to enforce 
the voting guarantees of the fourteenth or fifteenth 
amendment.” App. 54a-67a. The court concluded that the 
third interpretation was “the best answer,” App. 66a, and 
thus that this case was likely an “action or proceeding 
to enforce the voting guarantees of the fourteenth or 
fifteenth amendment.” App. 66a n.12.

Yet the Court declined to actually decide whether 
Shelby County was eligible for fees because it believed 
that Shelby County was not entitled to fees. App. 66a-67a. 
The district court began by emphasizing that the Supreme 
Court had employed a “purposive” mode of analysis to 
“cabin district court discretion in awarding attorney’s 
fees under the federal civil rights laws.” App. 68a; see also 
App. 74a-75a (contrasting this “purposive” approach with 
the more evenhanded approach employed in applying fee 
statutes outside of the civil-rights context).

Notwithstanding that “prevailing party” statutes are 
party neutral, the district court explained that this Court 
had elected to treat prevailing plaintiffs more favorably 
than defendants in civil rights cases. App. 75a. On the one 
hand, prevailing civil-rights plaintiffs “should ordinarily



6

recover attorney’s fees unless special circumstances would 
render such an award unjust.” Newman v. Piggie Park 
Enterprises, Inc., 390 U.S. 400, 402 (1968). On the other 
hand, the Court “ insulate[d]” unsuccessful civil-rights 
plaintiffs from most attorney’s fee claims, holding that 
prevailing defendants should be entitled to fees “only 
if ‘the plaintiff’s action was frivolous, unreasonable, or 
without foundation.’” App. 72a (quoting Christiansburg 
Garment Co. v. EEOC, 434 U.S. 412, 421 (1978)).

The district court found two reasons why this Court 
had treated plaintiffs more favorably. First, a plaintiff 
proceeding under a federal civil-rights statute “ ‘is the 
chosen instrument of Congress to vindicate a policy that 
Congress considered of the highest priority.’” Id. (quoting 
Christiansburg, 434 U.S. at 418). “ ‘Second, when a district 
court awards counsel fees to a prevailing plaintiff, it is 
awarding them against a violator of federal law.’” Id. 
(quoting Christiansburg, 434 U.S. at 418). These dual 
standards stemmed from the Court’s “value judgment 
about the subjective intent of Congress.” App. 70a. 
“ ‘Congress sought t o ... provide incentives for the bringing 
of meritorious lawsuits, by treating successful plaintiffs 
more favorably than successful defendants in terms of the 
award of attorney’s fees.’” App. 75a (quoting Fogerty v. 
Fantasy, Inc., 510 U.S. 517, 524 (1994)).

Having outlined the required analysis, the district 
court emphasized that the D.C. Circuit had “arguably” gone 
further than the Supreme Court has” by “employ[ing] 

this purposive approach even in economic statutes outside 
of the civil rights context.” App. 78a. Moreover, the 
district court read D.C. Circuit precedent as endorsing 
an inquiry into “ the actual motivations of the plaintiff



7

and the defendant in a particular case.” App. 83a. Thus, 
the district court explained, “a court should look beyond 
the simplistic labels of ‘plaintiff’ and ‘defendant.’” App. 
77a; see also App. 78a (stating that Christiansburg does 
not apply where “ ‘the procedural posture of a case places 
the party who seeks to vindicate rights guaranteed by 
the Constitution in the position of defendant’” ) (quoting 
Commissioners Court of Medina County, Texas v. United 
States, 683 F.2d 435, 440 (D.C. Cir. 1982)).

Turning to this case, the district court believed that 
whether Piggie Park’s broadly permissive standard or 
Christiansburg’s more restrictive standard should apply 
was “a question of first impression.” App. 46a. The district 
court elected to apply the Christiansburg standard to 
Shelby County’s request for fees, notwithstanding that 
Shelby County is the plaintiff in this VRA action. In the 
district court’s view, Shelby County’s lawsuit “was about 
as far as possible from the lawsuit the drafters of section 
19731(e) were hoping to ineentivize.” App. 81a. The Attorney 
General and the defendant intervenors “were actually ... 
the parties charging civil rights violations and seeking to 
assert their civil rights.” App. 84a (quotation omitted). And 
Shelby County, the plaintiff, was “essentially the opposite 
of the chosen instrument of Congress to vindicate a policy 
that Congress considered of the highest priority.” App. 85a 
(quotations omitted). As the district court saw it, Shelby 
County’s position “was openly hostile to Congress’s policy 
choices, attacking them as unconstitutional.” App. 86a. 
Because Shelby County did not “ fit the statute’s preferred 
profile,” App. 81a, the court applied the more restrictive 
Christiansburg standard. Applying Christiansburg, the 
district court concluded that the Government’s and the 
Defendant-Intervenors’ positions were not “ frivolous,



8

unreasonable, or without foundation,” App. 87a (quoting 
Christiansburg, 434 U.S. at 421), and therefore Shelby 
County was not entitled to fees.

3. The D.C. Circuit affirmed, in three separate 
opinions. Writing for the court, Judge Griffith noted that 
whether Shelby County was eligible for fees was a “difficult 
question.” App. 15a-16a. Declining to answer that question, 
Judge Griffith held that Shelby County was not entitled to 
fees because “ its victory did not advance any of the goals 
Congress meant to promote by making fees available.” 
App. 2a. While purporting to apply Piggie Park, Judge 
Griffith followed the Court’s analysis in Christiansburg. 
According to Judge Griffith, Shelby County’s argument 
in support of its fee request “boils down to the proposition 
that Congress introduced the fee-shifting provision into 
the VRA in 1975 with the express goal of inducing a 
private party to bring a lawsuit to neuter the Act’s central 
tool.” App. 17a. To Judge Griffith, this made “no sense” 
because Congress “enacted fee-shifting provisions in civil 
rights statutes to ‘secur[e] broad compliance’ with [them], 
not to immobilize them.” Id. (quoting Piggie Park, 390 U.S. 
at 401). Nor did “Congress need to enlist private suits to 
challenge the constitutionality of the coverage formula,” 
because Congress included a “sunset provision that would 
ensure the formula’s expiration at some point in the future 
absent new authorization.” Id. In short, Judge Griffith 
concluded that Shelby County was not entitled to rely on 
the Piggie Park standard for the same reasons that the 
defendant-employer in Christiansburg could not: because 
it had not “helped ensure compliance with the civil rights 
laws.” App. 15a.



9

In his concurrence, Judge Tatel agreed that Shelby 
County was not entitled to attorney’s fees, but would 
have found that Shelby County also was not eligible for 
fees under Section 14(e) of the VRA. According to Judge 
Tatel, Shelby County’s complaint was not designed to 
“protect any voting right guaranteed by the Fourteenth 
or Fifteenth Amendment,” but was instead designed 
to “ enforce the Tenth Am endm ent by vindicating 
federalism interests and the fundamental principle of 
equal sovereignty among the states.” App. 31a (emphasis 
in original). Accordingly, Shelby County’s lawsuit was not 
an “action or proceeding to enforce the voting guarantees 
of the fourteenth or fifteenth amendment.” 52 U.S.C. 
§ 10310(e).

Judge Silberman concurred in the judgment, writing 
separately to rebut the fees analysis of Judges Griffith and 
Tatel. According to Judge Silberman, they improperly 
found that “a suit that challenges the constitutionality 
of a version of the Voting Rights Act [could] be rejected 
merely because it challenges the Voting Rights Act.” 
App. 38a Unlike other civil rights statutes that speak to 
suits to enforce the statute, the VRA provides fees for 
suits “ to enforce the voting guarantees of the Fourteenth 
and Fifteenth Amendments.” Id. For example, a party 
challenging a version of the VRA that was discriminatory 
to African-American voters clearly would be entitled to 
fees, as even the Defendant-Intervenors acknowledged. Id.

Judge Silberman further found that a plaintiff 
whose action invalidated Section 4(b) and Section 5 could 
receive attorney’s fees because “ the Section 5 procedure 
... limit[ed] the ability of voters to expeditiously change 
various voting practices and insofar as the formula for



10

inclusion of covered jurisdiction was arbitrary, it was 
discriminatory.” App. 39a. In other words, a plaintiff could 
receive fees if it “protect[ed] the rights of individual voters 
in governed jurisdictions not to be discriminated against 
under the Fourteenth and Fifteenth Amendments” by 
ensuring their votes were not “abridged” by arbitrary 
means. Id.

Despite this recognition, however, Judge Silberman 
believed that Shelby County could not recover attorney’s 
fees because “the original suit was not brought on behalf 
of the individual voting rights of the citizens of Shelby 
County.” App. 40a. Instead, Shelby County’s “claim of 
inappropriateness— at least originally—was only based 
on precepts of federalism of the Tenth Amendment, not 
individual voting guarantees.” Id. Believing that the fees 
analysis must turn on how the complaint was framed (and 
not the ultimate result of the action), Judge Silberman 
concluded that Shelby County should not receive fees.

REASONS FOR GRANTING THE PETITION

Under the Fourteenth and Fifteenth Amendments, 
States and individual voters within them have the right to 
control their electoral processes unless Congress enacts 
“appropriate” legislation overriding this authority. In 
Shelby County, Alabama v. Holder, this Court issued a 
landmark decision enforcing these voting guarantees. 133 
S. Ct. 2612 (2013). Striking down the antiquated coverage 
formula of the VRA, the Court found that Shelby County 
and its citizens had been denied their rights by a federal 
law that was not “appropriate” enforcement legislation 
under the Fourteenth and Fifteenth Amendments.



11

Through its lawsuit, Shelby County obtained historic 
success. Before Shelby County filed its complaint, 
thousands of jurisdictions had to go “hat in hand” to 
Washington, D.C. to seek federal approval before it 
could enact any voting change— no matter how small or 
inconsequential. This federal regime imposed enormous 
costs— in terms of sovereignty, individual rights, and 
resources. Through Shelby County, this Court declared 
the V R A ’s coverage form ula unconstitutional and 
reinstated the voting rights of individual voters in covered 
jurisdictions throughout the country.

On remand, Shelby County sought to recover its 
attorney’s fees under Section 14(e) of the VRA, which 
provides 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 ... a reasonable attorney’s fee.” 52 
U.S.C. § 10310(e). This fee petition followed logically 
from Shelby County’s victory before this Court. Shelby 
County indisputably prevailed on the merits and the 
relief it obtained enforced the Fourteenth and Fifteenth 
Amendment guarantees of local autonomy against 
discriminatory and “ inappropriate” federal regulation. 
In addition, there were no equitable circumstances of 
the kind present in Christiansburg counseling in favor of 
denying attorney’s fees. Shelby County’s sole reason for 
bringing this lawsuit was to stop the Attorney General 
from depriving the county and its citizens of rights 
guaranteed to them by the Fourteenth and Fifteenth 
Amendments. Shelby County should have recovered its 
fees.



12

Yet the court of appeals did not accept this Court’s 
views on the deprivation of constitutional rights imposed 
by the VRA. The court of appeals denied Shelby County’s 
fee request based on nothing more than its value judgment 
about whether Congress would have wanted a party such 
as Shelby County to recover its attorney’s fees. Congress, 
the court believed, would have cared little about protecting 
States and localities from an unconstitutional law; all 
Congress wanted was to enforce the federal regime to 
the maximum extent feasible.

As a consequence, the court refused to apply this 
Court’s longstanding rule that plaintiffs “should ordinarily 
recover attorney’s fees unless special circumstances would 
render such an award unjust.” Piggie Park, Inc., 390 U.S. 
at 402. Instead, the court of appeals employed an analysis 
borrowed from Christiansburg. This approach finds no 
basis in this Court’s decisions or the text of the VRA. 
Nothing but antipathy to this Court’s decision and the 
constitutional rights it protected can explain the court of 
appeals’ denial of Shelby County’s fee request.

Under the court of appeals’ reasoning, no party could 
ever be entitled to fees for challenging an unconstitutional 
federal law or action. But that cannot be right. Section 
14(e) provides for the recovery of fees by parties that 
prevail in actions “to enforce the voting guarantees of the 
fourteenth or fifteenth amendment,” and those guarantees 
apply against the federal governm ent. 52 U.S.C. 
§ 10310(e). Congress thus should be equally concerned 
with unconstitutional federal and state actions. At a 
minimum, it is entirely reasonable for Congress to pass a 
fees provision and intend for it to apply to future federal 
laws that violate constitutional rights. That is exactly what



13

happened here, as Shelby County successfully challenged 
the enforcement of the 2006-reauthorized preclearance 
regime and then sought fees under a 1975 fees provision.

But the court’s denial of fees will not just injure Shelby 
County— it will prevent future States and localities from 
resisting similar federal overreach. Not only will these 
jurisdictions be unable to recover their attorney’s fees, but 
they will face the possibility of paying the attorney’s fees 
of any groups that intervene on behalf of the government. 
Indeed, just weeks before the decision here, the court of 
appeals ordered the State of Texas to pay more than a 
million dollars in attorney’s fees to the many individuals 
and groups that intervened as defendants in Texas’s 
preclearance action— despite the fact that Shelby County 
meant that the defendant-intervenors there did not prevail 
in that lawsuit. Faced with such prospects (paying its 
own fees if it wins or paying all parties’ fees if it loses), 
no jurisdiction will venture forth to protect itself and its 
citizens.

This may have been the goal of the lower courts, 
but it should give this Court tremendous pause. Shelby 
County was one of the most important voting rights 
decisions of the past 50 years. It enforced the limits 
on congressional authority under the Fourteenth and 
Fifteenth Amendments and vindicated the rights of the 
covered jurisdictions and the millions of individual voters 
within them. But similar cases may never go forward if the 
court of appeals’ decision is allowed to stand. This Court 
should grant the petition.



14

I. Review Is Warranted Because The Decision Below 
Conflicts With Piggie Park And Will Hinder States 
And Local Governments From Opposing Federal 
Overreach.

At the turn of the decade, there were numerous 
lawsuits across the country stemming from the Attorney 
General’s enforcement of Sections 4(b) and 5 of the VRA. 
States were seeking “preclearance” from the District 
Court for the District of Columbia for their voting 
changes, such as redistricting plans, see, e.g., Texas v. 
United States, 887 F. Supp. 2d 133 (D.D.C. 2012), and 
changes to election procedures, see, e.g., Florida v. United 
States, 885 F. Supp. 2d 299 (D.D.C. 2012). Individuals and 
interest groups were asking other district courts to enjoin 
voting practices until the covered jurisdiction obtained 
preclearance. See, e.g., Davis v. Perry, No. ll-cv-788, 
2011 WL 6207134, at *1 (W.D. Tex. Nov. 23, 2011). And 
counties and individuals were bringing lawsuits in the 
District Court for the District of Columbia challenging the 
constitutionality of the Act itself. See, e.g., Shelby County, 
Ala. v. Holder, 811 F. Supp. 2d 424 (D.D.C. 2011).

This Court’s decision in Shelby County resolved all of 
these cases. Finding that “the conditions that originally 
justified [preclearance] no longer characterize voting in 
the covered jurisdictions,” 133 S. Ct. at 2622, the Court 
held that Section 4(b) of the VRA unconstitutionally 
exceeded Congress’s powers under Section 5 of the 
Fourteenth Amendment and Section 2 of the Fifteenth 
Amendment, id. at 2629. In short, the Court struck down 
the VRA’s coverage formula and thus freed every state and 
local jurisdiction in the country from their obligation to 
obtain federal permission before enacting voting changes.



15

Two things should have been clear following Shelby 
County. First, Shelby County, as the prevailing plaintiff in 
a case brought under a civil rights act statute, should have 
received attorney’s fees. Under Piggie Park, this Court 
has long held that a plaintiff “who succeeds in obtaining 
an injunction under [Title II of the Civil Rights Act] 
should ordinarily recover an attorney’s fee unless special 
circumstances would render such an award unjust.” 
390 U.S. at 402 (1968). This rule is well established. 
Before Shelby County, courts regularly awarded fees to 
prevailing plaintiffs in a wide array of voting litigation, 
including suits involving apportionment and redistricting 
plans, see, e.g., Williams v. Board of Com’rs o f McIntosh 
County, 938 F. Supp. 852 (S.D. Ga. 1996), voter-residency 
requirements, see, e.g., Lytle v. Commissioners of Election 
of Union County, 541 F.2d 421 (4th Cir. 1976), the dilution 
of African-American or other minority voting strength, 
see, e.g., Campaign for a Progressive Bronx v. Black, 631 
F. Supp. 975 (S.D.N.Y. 1986), at-large methods for electing 
legislators, see, e.g., NAACP v. City of Dover, Del., 123 
F.R.D. 85 (D. Del. 1988), election procedures, such as 
all-English ballots, see, e.g., Torres v. Sachs, 538 F.2d 
10,13 (2d Cir. 1976), and a jurisdiction’s failure to obtain 
preclearance, see, e.g., Andrews v. Koch, 554 F. Supp. 1099 
(E.D.N.Y. 1983). Indeed, no party or court below has cited 
a single case in which a plaintiff sued under a civil rights 
statute, prevailed, and was denied fees under a standard 
other than Piggie Park.

Second, those individuals and interest groups 
intervening as defendants to defend the VRA’s preclearance 
regime and oppose covered jurisdictions’ attempts to 
obtain preclearance should not have received attorney’s 
fees. Even assuming that defendant-intervenors in



16

preclearance actions are eligible for fees under Section 
14(e) of the VRA, see infra at 17, there was no question 
that the defendant-intervenors in these cases were not 
“prevailing parties” after Shelby County. The Attorney 
General and his supporting intervenors lost all of these 
cases the moment this Court declared the preclearance 
regime unconstitutional.

Yet when the issue arose in two cases, the D.C. Circuit 
flipped the script. In Shelby County’s case, the court of 
appeals denied attorney’s fees— despite the fact that 
Shelby County was unequivocally the prevailing party 
in an action brought under the VRA. But then in Texas 
v. United States, the D.C. Circuit awarded fees to the 
defendant-intervenors— despite the fact that Texas had 
prevailed on every claim after Shelby County. 798 F.3d 
1108 (2015). In short, the D.C. Circuit declared that the 
winners should lose and the losers should win.1

Only antipathy to this Court’s decision in Shelby 
County and the plaintiffs supporting it explains these 
backward decisions. Under this Court’s precedent, Shelby 
County should have received fees, and the defendant- 
intervenors in Texas should not have, see Petition for 
Certiorari, Texas v. Davis, No. 14-5151 (Oct. 22, 2015). 
While these decisions obviously harm the jurisdictions 
involved, they do far more damage to future jurisdictions 
in similar situations. By putting an enormous thumb on 
the scale, the D.C. Circuit grossly distorts a State or local

1. The D.C. Circuit was not the only court to impose 
attorney’s fees on covered jurisdictions despite Shelby County. 
See Davis v. Abbott, 991 F. Supp. 2d 809 (W.D. Tex. 2014), rev’d 
781 F.3d 207 (5th Cir. 2015). That case too is pending before this 
Court. See Davis v. Abbott, No. 15-46 (S. Ct.).



17

government’s ability to defend its rights and the rights of 
its voters under the VRA and other similar statutes.

As it made plain in Texas, the D.C. Circuit interprets 
Section 14(e) of the V R A  to mean that defendant- 
intervenors “should be awarded attorney’s fees ... if 
[they] contributed substantially to the success of the 
litigation.” Donnell v. United States, 682 F.2d 240, 
248-49 (D.C. Cir. 1982). And history demonstrates that 
defendant-intervenors are nearly always awarded fees, 
notwithstanding the fact that the Attorney General is 
perfectly capable of litigating actions under the VRA. 
For example, in Commissioners Court of Medina County, 
Texas v. United States, the D.C. Circuit found that three 
Mexican-American citizens who intervened as defendants 
in a preclearance action would be eligible for fees. 683 F.2d 
435, 440 (D.C. Cir. 1982) (“ [N]either [the party’s] status 
as intervenors nor as defendants precludes an award of 
fees under the Voting Rights Act.” ). The court’s holding 
rested on the belief that “ [h]aving voluntarily entered the 
suit, a defendant-intervenor’s position can more readily 
be analogized to that of a plaintiff.” Id. at 440 n.5; see also 
Castro County, Tex. v. Crespin, 101 F.3d 121,126 (D.C. Cir. 
1996) (holding that “a party intervening as a defendant in 
a section 5 action may be a prevailing party” and thus may 
be entitled to attorney’s fees); Shelby County v. Holder, 
43 F. Supp. 3d 47, 55 (D.D.C. 2014) (documenting history 
of D.C. Circuit awarding fees to defendant-intervenors).

As a consequence, if the D.C. Circuit’s decisions are 
allowed to stand, a jurisdiction like Shelby County must 
now assume an enormous risk before bringing a similar 
lawsuit. It cannot recover damages (because the statute 
does not allow them) and it cannot recover attorney’s fees



18

(unless the high Christiansburg standard is met). Thus, 
even a win will cost the jurisdiction significant sums of 
money. At the same time, a loss would cost them even more. 
Defendant-intervenors are almost always granted leave 
to intervene, see Cunningham Motion to Intervene at 5-6, 
Shelby County v. Holder, No. 10-651 (D.D.C.) (Dkt. 6-1) 
(listing cases), and almost always awarded attorney’s fees 
if they prevail, see, e.g., Castro County, Tex., 101 F.3d at 
126. And as the Texas case shows, defendant-intervenors— 
despite having the United States government as the lead 
defendant— often incur substantial attorney’s fees. See, 
e.g., Texas, 798 F.3d at 1108 (affirming award to defendant- 
intervenors in district court redistricting litigation of over 
$1 million in attorney’s fees).

Indeed, that easily could have happened here. As the 
district court recognized, if Shelby County had lost before 
the Supreme Court, “defendant-intervenors would likely 
have sought attorney’s fees” and the court “presumably 
would have awarded” them. App. 63a. Defendant- 
intervenors in this case were represented by eighteen 
lawyers from seven different law firms or organizations. 
There is no doubt that Shelby County would have been 
handed a massive bill had this Court gone the other way 
on the merits.

Faced with such prospects— paying its own attorney’s 
fees if it wins and paying the fees of perhaps dozens of 
additional attorneys if it loses— a jurisdiction such as 
Shelby County would never file a similar lawsuit in the 
future, as “only a lunatic or a fanatic” would go forward 
against such odds. Carnegie v. Household Int’l, Inc., 376 
F.3d 656, 661 (7th Cir. 2004). That is precisely the kind 
of “distortion” of incentives that this Court has sought



19

to avoid in applying equitable concepts to fee-shifting 
statutes like Section 14(e). See Indep. Fed’n of Flight 
Attendants v. Zipes, 491 U.S. 754, 763-64 & n.4 (1989) 
(fee-shifting statutes should not be construed so as to 
impose “one-way fee liability” on parties who bring 
lawsuits merely “ to defend their own constitutional or 
statutory rights” ).

These decisions will also inject enormous risk and 
uncertainty into the decision of whether to bring a lawsuit 
involving “unsympathetic” positions. Courts should not 
deny fees merely because they believe Congress would 
have disfavored the litigants, see, e.g., Maloney v. City of 
Marietta, 822 F.2d 1023,1026 (11th Cir. 1987) (awarding 
attorney’s fees to a white male plaintiff under Section 
14(e) of the VRA); Coyote v. Roberts, 502 F. Supp. 1342, 
1354 (D .R.1.1980) (awarding attorney’s fees to admitted 
prostitutes over the government’s objection that it 
was not in “the interest of the public [to] protects and 
legitimiz[e] prostitution”), because they dislike the parties’ 
motivations, see e.g., Herrington v. County of Sonoma, 883 
F.2d 739, 744 (9th Cir. 1989) (awarding fees even though 
the plaintiff was motivated by “personal financial gain 
rather than a desire to promote constitutional rights [or] 
the public at large”), or because the individual has no need 
for the fees, see, e.g., Hastert v. III. State Bd. of Election 
Comm’rs, 28 F.3d 1430,1443 (7th Cir. 1993) (awarding fees 
even though the plaintiff had the “ability to pay for legal 
representation”). Similarly, courts should not award fees 
to parties that did not prevail, even if they are promoting 
a good cause or are in need of the fees. See Doe v. Boston 
Pub. Sch., 358 F.3d 20, 29 (1st Cir. 2004) (explaining how 
the “undeniably laudable” goal of encouraging prompt 
resolution of disputes regarding appropriate education for



20

handicapped children “does not affect our interpretation of 
the term prevailing party”). The D.C. Circuit’s decisions 
undermine these basic principles.

At bottom , the D.C. C ircuit has reduced the 
determination of fee awards in civil-rights cases into 
judicial handpicking of winners and losers based on 
nothing more than the “value judgm ents,” App. 75a, of 
the sitting panel. This “judge-made ranking of rights” 
warrants correction. Zipes, 491 U.S. at 763 n.4.

II. Review Is Warranted To Limit Christiansburg’s
Misguided Countertextual Approach To Fee
Determinations.

In 1968, the Court in Piggie Park laid down the rule 
that a plaintiff “who succeeds in obtaining an injunction 
under [Title II of the Civil Rights Act] should ordinarily 
recover an attorney’s fee unless special circumstances 
would render such an award unjust.” 390 U.S. at 402 
(1968). The Court explained that the statute’s fee-shifting 
provision must provide fees to successful plaintiffs in 
nearly all civil rights cases because successful plaintiffs 
under Title II “cannot recover damages.” Id. Thus, “ few 
aggrieved parties would be in a position to advance the 
public interest by invoking the injunctive powers of the 
federal courts” if they were “routinely forced to bear their 
own attorneys fees.” Id. The Court’s Piggie Park decision 
established the default standard for awarding fees to a 
prevailing party who sues under a statute for which fees 
are authorized and prevails.



21

Twelve years later, the Court carved out an exception 
to the Piggie Park rule that prevailing parties are 
ordinarily entitled to fees. In Christiansburg Garment, the 
Equal Employment Opportunity Commission (“EEOC”) 
sued Christiansburg Garment Company alleging that the 
company had engaged in unlawful employment practices 
in violation of Title VII of the Civil Rights Act of 1964. The 
district court granted the company summary judgment 
on procedural grounds, finding that the EEOC could not 
bring its claim because no charges were “pending” before 
the EEOC when Title VII took effect. 434 U.S. at 421.

Christiansburg Garment then sought fees under the 
Piggie Park standard. Because Title V II’s fee provision, 
like the V R A ’s, is a “prevailing party” statute, see 
Buckhannon Bd. & Care Home, Inc. v. WestVirginia Dept, 
of Health and Human Resources, 532 U.S. 598, 602-03 
(2001) (listing examples), the provision is party-neutral as 
to plaintiffs and defendants.2 Accordingly, Christiansburg 
Garment argued “that the language of [the attorney’s fee 
provision] admits of only one interpretation: A  prevailing 
defendant is entitled to an award of attorney’s fees on the 
same basis as a prevailing plaintiff.’” Christiansburg, 434 
U.S. at 418.

Yet the Court in Christiansburg rejected  this 
“mechanical construction” of the statute as “untenable,” 
noting that the terms of the statute “provide no indication 
whatever of the circumstances under which either a 
plaintiff or a defendant should be entitled to attorney’s

2. Section 706(k) of Title V II provides: “In any action or 
proceeding under this title the court, in its discretion, may allow 
the prevailing party ... a reasonable attorney’s fee[J” 42 U.S.C. 
§ 2000e-5(k).



22

fees.” Id. The Court simply assumed that Congress would 
not have wanted prevailing defendants to regularly receive 
fees and so it created a restrictive standard under which 
prevailing defendants would recover fees only when 
the plaintiff’s claim was “ frivolous, unreasonable, or 
groundless.” Id. at 422.

The Christiansburg Court based this standard upon 
certain “equitable considerations”— namely, its perception 
that a prevailing plaintiff under a civil rights statute “ is 
the chosen instrument of Congress to vindicate a policy 
that Congress considered of the highest priority” and that 
the losing defendant is “a violator of federal law.” 434 U.S. 
at 418 (internal quotation omitted). But Christiansburg 
created these considerations out of whole cloth. Indeed, the 
Court has long recognized that they did not arise from the 
text. Id. (“The terms of § 706(k) provide no indication ....” ); 
see also West Virginia Univ. Hosps., Inc. v. Carey, 499 U.S. 
83,112 (1991) (Stevens, J., dissenting) (“[Christiansburg’s] 
holding rested entirely on our evaluation of the relevant 
congressional policy and found no support within the four 
corners of the statutory text.” ).

Though courts have described this approach as 
“purposive,” that is a charitable description. A  purposive 
construction is one in which a court “considerfs] statutory 
language in light of a statute’s basic purposes,” and thus 
is understood to reflect the purposes and intentions 
of Congress. Dole Food Co. v. Patrickson, 538 U.S. 
468, 484 (2003) (Breyer, J., concurring in part and 
dissenting in part). But Christiansburg’s purposivism 
is so unhinged from the statute that it cannot fairly be 
said to reflect the purposes and intentions of Congress. 
Indeed, Christiansburg itself indicates that the “equitable



23

considerations” supporting the restrictive standard 
it adopted grew out of the court’s own “moment[ary] 
reflection .” 434 U.S. at 418. As the district court 
acknowledged, Christiansburg’s purposivism thus is no 
more than a court’s “value judgment about the subjective 
intent of Congress.” App. 70a. This is essentially no 
standard at all.3

Although Christiansburg’s mode of analysis is suspect, 
the dual approach it set out for fee determinations at least 
had the benefit of clarity: under Piggie Park, prevailing 
plaintiffs “almost always” recover their fees, and under 
Christiansburg, courts “ almost always” deny fees to 
prevailing defendants. S. Wilborn, Public Pensions & the 
Uniform Management of Public Employee Retirement 
Systems Act, 51 Rutgers L. Rev. 141, 171 n.170 (1998). 
Christiansburg’s lack of standards, however, has replaced 
clarity with confusion, as courts now read Christiansburg 
to throw away the “simplistic labels of ‘plaintiff’ and 
‘defendant.’” App. 77a.

Indeed, this case illustrates the mischief caused 
by Christiansburg. Guided by nothing other than their 
own preferences, courts will award fees to whichever 
prevailing parties they favor. Here, the lower courts cited 
no case in which a prevailing plaintiff in an action under

3. Congress has employed similar “prevailing party” statutes 
in numerous instances outside of the civil-rights realm. But these 
are uniformly applied in an “evenhanded” manner. Fogerty v. 
Fantasy, Inc., 510 U.S. 517, 536 (1994) (Thomas, J., concurring 
in the judgment). That the same language has resulted in two 
entirely divergent regimes for fee determinations confirms that 
the Christiansburg approach is entirely court-driven and does 
not reflect choices made by Congress. Id.



24

the civil-rights laws was denied fees; yet both held that 
Shelby County’s fee request should be denied based on 
nothing more than their view that Congress would not 
have wanted to incentivize this type of lawsuit.

The district court was at least candid about its “value 
judgment^].” App. 70a. While the D.C. Circuit purported 
to apply Piggie Park, it did no such thing. Instead, it 
employed the same analysis as the district court, tracking 
Christiansburg to evaluate for itself whether Shelby 
County was a “chosen instrument of Congress.” App. 13a. 
The court never engaged in the inquiry actually called 
for under Piggie Park to determine whether “special 
circumstances” existed that would render a fee award to 
Shelby County “unjust.”

There are only two possible reasons why the court 
would say it was applying Piggie Park while not actually 
doing so. Either the Christiansburg’s standardless 
approach has so muddled the fee analysis that the court 
was confused about how to apply the precedent; or the 
court strategically manipulated the precedent in order to 
achieve a particular outcome. One may be worse than the 
other, but either is an indictment of the Christiansburg 
approach.

At bottom, Christiansburg’s standardless approach 
to statutory interpretation “robs the law of the clarity 
of its command and the certainty of its application.” 
Fogerty, 510 U.S. at 537 (Thomas, J., concurring in the 
judgment). Review is warranted to remedy the mischief 
Christiansburg has created and make clear that Piggie 
Park applies to all plaintiffs prevailing under civil-rights 
statutes.



25

III. Under A Proper Application Of The Governing
Precedent, There Can Be No Question That Shelby
County Is Entitled To Recover Its Fees.

Resolving this fee dispute requires no more than a 
straightforward application of Piggie Park. Under Piggie 
Park, prevailing civil-rights plaintiffs “ recover attorney’s 
fees unless special circumstances would render such 
an award unjust.” 390 U.S. at 402. Shelby County is a 
prevailing plaintiff in an action under Section 14(b) of 
the Voting Rights Act. No party contended and neither 
lower court found that “special circumstances” exist that 
would render a fee award to Shelby County “unjust.” Nor 
is there a single case in which a prevailing plaintiff under 
a civil rights act statute was denied fees under a standard 
other than Piggie Park. Shelby County is entitled to a fee 
recovery.

Even assuming that Christiansburg properly could 
apply to the fee request of a prevailing civil-rights plaintiff, 
it should not here. Piggie Park applies for several reasons. 
First, and most important, Shelby County is a classic 
“private attorney general,” Piggie Park, 390 U.S. at 402, 
as it brought this action directly under a civil rights act 
statute in order to “advance the public interest by invoking 
the injunctive powers of the federal courts,” id., on behalf 
of itself and thousands of similarly situated jurisdictions 
and their millions of citizens. Shelby County sought to 
restore proper constitutional order and to regain for its 
citizens their fundamental right to structure and order 
elections in the way they see fit, subject to universal 
constitutional restraints. In this regard, it was hugely 
successful. See Shelby County, 133 S. Ct. at 2625.



26

Second, by bringing its lawsuit, Shelby County was 
vindicating a policy of the “highest priority,” Piggie Park, 
390 U.S. at 402, as it sought to enforce the Fourteenth and 
Fifteenth Amendments and the bounds of congressional 
authority thereunder and to preserve the federalism rights 
of covered jurisdictions and the rights of individual voters 
therein. The lower courts suggested Congress would 
have disagreed, but this could be true only if Congress 
is presumed to have no regard for the limits on its own 
constitutional authority, the rights of States to be free 
of a prior restraint that runs counter to the principles of 
federalism and self-government, or the rights of individual 
voters within those restrained jurisdictions. But of course, 
Congress is duty bound to uphold the Constitution, see U.S. 
Const., art. VI, cl. 3 (“ The Senators and Representatives 
... shall be bound by Oath or Affirmation, to support this 
Constitution.”), and to consider the limits of its authority 
when legislating, see City of Boerne v. Flores, 521 U.S. 
507, 535 (1997).

Third, awarding Shelby County fees would not 
undermine any congressional goal of encouraging 
plaintiffs to bring actions to protect voting rights under 
the VRA. Future VRA plaintiffs could still anticipate 
recovering their fees under Piggie Park if they prevailed. 
And “blameless” intervenors could still intervene and 
assert their rights while being protected from catastrophic 
fee awards. In fact, it is the court of appeals that has now 
grossly distorted the incentives to litigate under the VRA 
and other civil rights statutes. See supra at 17-19.

Finally, a fee award against the Government would not 
be inequitable because the Government is not “blameless” 
or “ innocent” like the Title VII plaintiff in Christiansburg



27

or the intervenors in Zipes. A fter this Court twice 
interpreted Section 5 to lessen the federalism burdens of 
the preclearance obligation (and to avoid serious questions 
about its constitutionality), see Reno v. Bossier Parish Sch. 
Bd., 528 U.S. 320 (2000); Georgia v. Ashcroft, 539 U.S. 461 
(2003), Congress disregarded both of those decisions in 
passing the 2006 reauthorization of the VRA. Moreover, 
the Court warned Congress in Northwest Austin v. Holder 
that the “preclearance requirements and its coverage 
formula raise serious constitutional questions” in light of 
the changed circumstances in the covered jurisdictions. 
557 U.S. 193, 204 (2004). Yet Congress did nothing in 
response. It held not one hearing, proposed not one bill, 
and amended not one law. See Shelby County, 133 S. Ct. at 
2631 (“ [I]n [Northwest Austin], we expressed our broader 
concerns about the constitutionality of the Act. Congress 
could have updated the coverage formula at that time, 
but did not do so. Its failure to act leaves us today with no 
choice but to declare § 4(b) unconstitutional.” ).

Even worse, the Attorney General actively and 
aggressively enforced an unconstitutional statute over 
those same warnings and in ways that served only to 
exacerbate the problems with the coverage formula. For 
example, the Attorney General refused to preclear Texas 
and South Carolina voter ID laws, despite the fact that the 
Supreme Court had previously upheld a similar Indiana 
law. See Crawford v. Marion County Election Board, 553 
U.S. 181 (2008). The Attorney General likewise refused 
to preclear Florida’s decision to reduce early voting 
from 14 days to 8 days, when noncovered States such 
as Connecticut and Rhode Island have no early voting 
whatsoever. See Florida, 885 F. Supp. 2d at 299.



28

Clearly, then, the actions of Congress and the Attorney 
General in disregarding the limits of federal authority 
under the Fourteenth and Fifteenth Amendments are 
what forced the constitutional showdown in Shelby 
County}  See Fox v. Vice, 131 S. Ct. 2205, 2213 (2011) 
(explaining that Piggie Park applies where a plaintiff 
prevails against “ the party whose misconduct created the 
need for legal action”). The federal government enacted 
and aggressively enforced an unconstitutional statute. 
Awarding counsel fees to Shelby County thus would 
be “awarding them against a violator of federal law.” 
Christiansburg, 434 U.S. at 418. And it clearly would 
promote “ the general policy that wrongdoers make whole 
those whom they have injured.” Zipes, 491 U.S. at 762.4 5

The D.C. Circuit’s principal reason for denying fees 
was its belief that Congress would never have wanted to 
award fees to a party that succeeded in “convincing the 
[Supreme] Court to strike down the VRA’s signature 
statutory device.” App. 24a. But this analysis is deeply 
flawed.

To begin, the court of appeals’ reasoning ignores the 
fact that Congress specifically included a provision in the

4. The D.C. Circuit thus is plainly wrong to suggest that 
Congress did not “need[] help” in enforcing the limits of its 
authority under the Fourteenth and Fifteenth Amendments. 
App. 18a.

5. There is no meaningful difference in the injury caused by 
enforcement of an unconstitutional statute and an unconstitutional 
ad hoc decision that leads to the same result— both affect the 
injured party in the same way. See, e.g., Lavin v. Rusted, 764 
F,3d 646 (6th Cir. 2014) (awarding fees after successful challenge 
to 30-year-old campaign finance law that had not been enforced).



29

VRA— Section 14(b), 52 U.S.C. § 10310(b)—which creates 
a cause of action for a plaintiff to seek a “declaratory 
judgment... or permanent injunction against the execution 
or enforcement of any provision of [the VRA] or any action 
of any Federal officer or employee pursuant hereto.” 52 
U.S.C. § 10310(b). Attorney General Katzenbach, one of the 
primary drafters of the VRA, emphasized that the point 
of this provision was to spur a challenge to the statute: “ it 
seemed to us that the important thing was to get this act 
tested, to get it tested in one court, and not to interfere 
with the jurisdiction of that court, and provide an appeal 
to the Supreme Court.” To Enforce the 15th Amendment 
to the Constitution of the United States: Hearing on S.156J 
Before the S. Comm, on the Judiciary, 89th Cong, at 144 
(1965). Shelby County thus brought its lawsuit directly 
under Section 14(b) of the VRA. This was exactly what 
Congress intended. See Allen v. State Bd. of Elections, 
393 U.S. 544, 558 (1969) (recognizing that Section 14(b) 
specifically authorizes plaintiffs to pursue various actions 
including lawsuits “attack[ing]... the constitutionality of 
the Act itself” ); see also App. 51a-54a.

Moreover, as Judge Silberman recognized, the 
VRA’s fee provision was enacted in 1975, whereas the 
provisions Shelby County challenged were enacted in 
2006. Thus, it is entirely possible that Congress would have 
supported awarding fees to plaintiffs challenging future 
unconstitutional actions. Indeed, courts have repeatedly 
recognized that litigants that succeed in declaring a law 
unconstitutional provide a public benefit. See, e.g., Lavin, 
764 F.3d at 651; Kulkarni v. Nyquist, 446 F. Supp. 1274, 
1277-78 (N.D.N.Y. 1977).



30

Under the D.C. Circuit’s rule, no party would ever be 
entitled to fees for challenging an unconstitutional federal 
law or action. Yet Congress should be equally concerned 
about unconstitutional federal and state actions, especially 
given that the recovery of fees under Section 14(e) is 
tied to the enforcement of the voting guarantees of the 
Fourteenth and Fifteenth Amendments, which apply to 
the federal government.

In fact, Section 14(b) is hardly unique. Numerous 
examples abound of statutes in which Congress sought 
to police the limits on its own authority by providing for 
a challenge to a statute, particularly where one or more 
of its provisions were of debatable constitutionality at 
the time of its enactment. See, e.g., Bipartisan Campaign 
Reform Act of 2002, Pub. L. No. 107-155, § 403, 116 
Stat. 81 (2002) (creating cause of action to “challenge 
the constitutionality of any provision of this Act or any 
amendment made by this Act” and prescribing rules for 
venue, intervention, and the like for such challenges). Nor 
is it unusual for fees to be available to a prevailing party in 
such an action. See, e.g., Elgin v. Dep’t of Treasury, 132 S. 
Ct. 2126 (2012) (employee challenging constitutionality of 
the Civil Service Reform Act must bring action under that 
act; fees available pursuant to 5 U.S.C. § 5596); Shelter 
Framing Corp. v. Pension Benefit Guar. Corp., 705 F.2d 
1502 (9th Cir. 1983), rev’d on other grounds sub nom. 
Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 
71/ (1984) (fees freely available to business that sought a 
declaratory judgment under ERISA that a provision of 
the ERISA statute was unconstitutional and prevailed on 
the merits). In other words, even if an action like Shelby 
C ounty s was not the primary reason Congress created 
the VRA’s fees provision, the presence of Section 14(b) is



31

good reason to believe that Congress wanted to encourage 
jurisdictions to bring an action to enforce the limits of the 
Fourteenth and Fifteenth Amendments.

In the end, the infirmity of the D.C. Circuit’s analysis 
is laid bare by what it does not cite: any case in which a 
plaintiff sued under a statute for which fees are available, 
prevailed on the merits, and had its request for fees from 
the defendant judged under a standard other than Piggie 
Park. That absence of authority is telling. This Court 
should not endorse the D.C. Circuit’s transparent attempt 
to deny fees based on its antipathy to this Court’s decision 
in Shelby County.

IV. Shelby County Is Eligible For Fees.

Although neither lower court ruled on the issue, both 
Judge Griffith and District Judge Bates strongly indicated 
that Shelby County would be eligible for fees under Section 
14(e) if they reached the issue. See App. 2a-30a, 41a-88a. 
While Judges Tatel and Silberman believed that Shelby 
County was not eligible for fees under the statute, their 
reasoning suffers from the same errors affecting the 
court of appeals’ entitlement analysis. See App. 28a-40a 
(Silberman, J.) (applying the same analysis to both issues). 
There is no question that Shelby County is eligible for 
attorney’s fees.

Section 14(e) of the VRA gives district courts the 
discretion to award fees to prevailing parties in “any 
action or proceeding to enforce the voting guarantees of 
the fourteenth or fifteenth amendment.” The Fourteenth 
and Fifteenth Amendments, in turn, create two categories 
of voting guarantees: (1) a guarantee to individuals against



32

discriminatory voting practices, and (2) a guarantee to 
state and local governments against federal nullification 
of voting laws unless by “appropriate” legislation. See 
amend. XIV, § 1 (“No state shall ... deny to any person 
within its jurisdiction the equal protection of the laws.” ); 
amend. XIV, § 2 (imposing apportionment penalties “when 
the right to vote at any election ... is denied ... or in any 
way abridged”); amend XV, § 1 (“ The right of citizens of 
the United States to vote shall not be denied or abridged 
by the United States or by any state on account of race, 
color, or previous condition of servitude.” ); amends XIV, 
§ 5, XV, § 2 (providing Congress with the power to enforce 
the amendments by “appropriate legislation”). Shelby 
County’s successful lawsuit enforced both of these voting 
guarantees. See Black’s Law Dictionary 621 (4th ed. 1968) 
(defining “enforce” as “ to compel obedience to”).

First, Shelby County’s lawsuit enforced the right of 
its citizens to be free of discriminatory voting practices. 
As Judge Silberman accurately explained, “ the Section 5 
procedure ... limitjed] the ability of voters to expeditiously 
change various voting practices and insofar as the formula 
for inclusion of covered jurisdiction was arbitrary, it was 
discriminatory.” App. 39a. In other words, Shelby County 
is eligible for fees because it “protected] the rights of 
individual voters in governed jurisdictions not to be 
discriminated against under the Fourteenth and Fifteenth 
Amendments” by ensuring their votes were not “abridged” 
by arbitrary means. Id.6

6. Although Judge Silberman recognized the right principle, 
he believed that Shelby County was not eligible for fees because 
its action “was not brought on behalf of the individual voting 
rights of the citizens of Shelby County” but instead on “precepts 
of federalism of the Tenth Amendment.” App. 39a. But it is mere



33

Second, Shelby County’s lawsuit enforced its right 
(and by extension its citizens’ rights) to be free of 
“ inappropriate” federal regulation of its voting practices. 
Shelby County prevailed in this litigation because it 
demonstrated that the record of racial discrimination 
in voting upon which Congress acted was insufficient 
to subject Shelby County and those similarly situated 
to comprehensive preclearance. Indeed, this Court 
recognized that Section 5 impaired the fundamental 
voting rights of citizens of covered jurisdictions in a way 
that comparable fundamental voting rights of citizens 
o f non-covered jurisdictions were not. See Shelby 
County, 133 S. Ct. at 2626-27 (observing that the 2006 
reauthorization of Section 5 provided only certain citizens, 
but not other citizens, with a substantive protection 
of their ability “ to elect their preferred candidates of 
choice,” and that “ the preclearance requirements in one 
State [might] be unconstitutional in another” because 
Section 5 required race-based action with regard to 
voting) (internal quotations and citations omitted). Shelby 
County succeeded, and its citizens once again possess the 
full panoply of voting rights that citizens of non-covered 
jurisdictions have always enjoyed. Cf Bond v. United 
States, 131 S. Ct. 2355, 2364 (2011) (federalism-based 
arguments ultimately promote individual liberty).

Both Judge Tatel and Judge Silberman believed that 
Shelby County is not eligible for fees because its action

formalism to say that Shelby County was acting only on its own 
behalf. Shelby County acted to protect it and its residents from 
federal overreach and to protect its voters’ ability to make changes 
in voting practices. Moreover, even a lawsuit to protect federalism 
is ultimately a promotion of individual rights. See Bond v. United 
States, 131 S. Ct. 2355, 2364 (2011).



34

was “only based on precepts of federalism of the Tenth 
Amendment, not individual voting guarantees.” App. 40a. 
But that is simply not true. From the beginning, Shelby 
County argued that Sections 4(b) and 5 of the VRA violated 
the Fourteenth and Fifteenth Amendments’ requirement 
that enforcement legislation be “appropriate,” see, e.g., 
App. 56a (“ The ‘preclearance’ obligation of Section 5 
exceeds Congress’s enforcement authority under the 
Fourteenth and Fifteenth Amendments”), and the courts 
recognized it as such, see, e.g., Shelby County, 679 F.3d 
at 853 (“Shelby County, Alabama, a covered jurisdiction, 
contends that when Congress reauthorized section 5 in 
2006, it exceeded its enumerated powers.” ). This case 
was about what Congress was no longer authorized to do 
under the Fourteenth and Fifteenth Amendments, plain 
and simple.

In any event, Shelby County’s intentions are not 
important, see Herrington, 883 F.2d at 744; what matters 
is whether its ultimate result “enforce[d] the voting 
guarantees of the fourteenth or fifteenth amendment,” 52 
U.S.C § 10310(e). Shelby County’s enforcement of the limits 
on congressional authority under the Fourteenth and 
Fifteenth Amendments and the concomitant guarantees 
to States and their citizens falls squarely within the scope 
of Section 14(e). As a prevailing party, it is eligible for fees.



35

CONCLUSION

The Court should grant the petition.

Respectfully Submitted,

Thomas R. McCarthy 
Counsel of Record 

W illiam S. Consovoy 
J. M ichael Connolly 
Consovoy McCarthy Park PLLC 
3033 Wilson Boulevard, Suite 700 
Arlington, VA 22201 
(703) 243-9423
tom@consovoymccarthy.com

Attorneys for Petitioner 
Date: November 3,2015

mailto:tom@consovoymccarthy.com


APPENDIX



la

APPENDIX A — OPINION OF THE UNITED 
STATES COURT OF APPEALS FOR THE 

DISTRICT OF COLUMBIA, DATED 
SEPTEMBER 1, 2015

UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 14-5138

SHELBY COUNTY, ALABAMA,

Appellant,

v.

LORETTA E. LYNCH, IN HER OFFICIAL 
CAPACITY AS ATTORNEY GENERAL 

OF THE UNITED STATES, et al,

Appellees.

April 10, 2015, Argued 
September 1, 2015, Decided

Appeal from the United States District Court 
for the District of Columbia 

(No. l.TO-cv-00651).

Before: Tatel and Griffith , Circuit Judges, and 
Silberman, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Griffith.



2a

Concurring opinion filed by Circuit Judge Tatel.

Opinion concurring in the judgment filed by Senior 
Circuit Judge Silberman.

Griffith, Circuit Judge:

Shelby County, Alabama, prevailed in a challenge to 
the constitutionality of section 4 of the Voting Rights Act 
of 1965 (VRA) and now seeks attorneys’ fees from the 
Government under the Act’s fee-shifting provision. The 
district court found that Shelby County was not entitled 
to receive fees because its victory did not advance any 
of the goals Congress meant to promote by making fees 
available. We agree.

Appendix A

I

The historical and legal background to this dispute 
has been set out several times over the history of this case. 
See Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612,2619-21, 
186 L. Ed. 2d 651 (2013); Shelby Cnty., Ala. v. Holder, 679 
F.3d 848,853-58,400 U.S. App. D.C. 367 (D.C. Cir. 2012), 
rev’d, 133 S. Ct. 2612,186 L. Ed. 2d 651; Shelby Cnty., Ala. 
v. Holder, 43 F. Supp. 3d 47, 50-52 (D.D.C. 2014); Shelby 
Cnty., Ala. v. Holder, 811 F. Supp. 2d 424,428-41 (D.D.C.
2011) , affd, 679 F.3d 848,400 U.S. App. D.C. 367 (D.C. Cir.
2012) , rev’d, 133 S. Ct. 2612,186 L. Ed. 2d 651 (2013). We 
assume familiarity with those discussions and will cover 
only the topics relevant to this fee dispute.



3a

Appendix A  

A

In the aftermath of the Civil War, the Nation ratified 
the Thirteenth, Fourteenth, and Fifteenth Amendments 
to the Constitution in an effort to stamp out the race-based 
forms of legal oppression that the states had imposed 
throughout the first century of the Republic. These 
amendments worked a profound change by sweeping 
away the most appalling forms of legal subjugation that 
had defined the pre-Civil War era. Black Americans now 
held the sovereign franchise and were entitled to equal 
treatment under the law. But racial prejudice is not only 
insidious, it is resilient. The serpent of state-sponsored 
racism remained in the garden and “the blight of racial 
discrimination” simply switched its focus to a new 
battleground and “ infected the electoral process” that 
black citizens had only begun to enter. South Carolina 
v. Katzenbach, 383 U.S. 301, 308, 86 S. Ct. 803,15 L. Ed. 
2d 769 (1966). Almost as soon as Reconstruction ended, a 
number of states adopted a variety of devices to suppress 
the newly established franchise of black citizens. Id. at 
310. Literacy tests, grandfather clauses, poll taxes, and 
property qualifications prevented black Americans from 
voting at all. Id. at 310-11. And cunning district design 
and other tactics almost completely diluted the political 
power of black citizens. See Shaw v. Reno, 509 U.S. 630, 
640, 113 S. Ct. 2816,125 L. Ed. 2d 511 (1993).

It was not until the 1950s that Congress began to take 
action to secure the promise of equal citizenship extended 
after the Civil War; among other things, Congress passed 
three statutes authorizing individual suits to protect



4a

voting rights. Katzenbach, 383 U.S. at 313. But case- 
by-case litigation proved too slow, so Congress enacted 
a further-reaching solution to “rid the country of racial 
discrimination in voting,” id. at 315: the Voting Rights 
Act of 1965. The VRA contained two principal provisions. 
The first, section 2, created a permanent, nationwide 
replacement for earlier civil rights statutes and authorized 
individual suits against any state or local jurisdiction 
that adopted a voting practice that had a discriminatory 
purpose or result. See Thornburg v. Gingles, 478 U.S. 30, 
35, 106 S. Ct. 2752, 92 L. Ed. 2d 25 (1986). The second, 
section 5, was even more dramatic: It imposed on “covered 
jurisdictions” the requirement of obtaining “preclearance” 
for “all changes in state election procedure” from a three- 
judge federal district court in Washington, D.C., or from 
the Attorney General before they could take effect. Nw. 
Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 
198, 203, 129 S. Ct. 2504, 174 L. Ed. 2d 140 (2009). The 
scope of section 5 was set by a formula in section 4 of the 
Act that covered any state or political subdivision that met 
certain telltale criteria of discriminatory voting practices 
as of November 1,1964. See Shelby County, 679 F.3d at 855. 
The scope of this intrusion onto state affairs, Congress 
found, was justified by the severity and intractability 
of the problem posed by racial discrimination in voting. 
Under the older case-by-case approach to litigating 
voting abuses, progress had been “painfully slow,” in part 
“because of the intransigence of [s]tate and local officials 
and repeated delays in the judicial process,” but also 
because “even after apparent defeat resisters [sought] 
new ways and means of discriminating.” H.R. Rep. No. 
89-439, at 9-10 (1965). “Barring one contrivance too often

Appendix A



5a

. . .  caused no change in result, only methods.” Id. at 10. In 
the face of this record, Congress concluded that there was 
“little basis for supposing” that without legislative action 
“the [sjtates and subdivisions affected will themselves
remedy the present situation___ ” S. Rep. No. 89-162, at
19 (1965). “ Thus, to keep minorities from continuing to be 
victimized by [sjtates and political subdivisions’ actions, 
Congress sought, through [sections 4 and 5] to ‘shift the 
benefit of time and inertia from the perpetrators of evil to 
the victim.’” H.R. Rep. No. 109-478, at 8 (2006) (quoting 
Katzenbach, 383 U.S. at 328).

“The historic accomplishments of the Voting Rights 
Act are undeniable.” Northwest Austin, 557 U.S. at 201. 
“The A c t . . .  proved immensely successful at redressing 
racial discrimination and integrating the voting process.” 
Shelby County, 133 S. Ct. at 2626. The change wrought 
by section 5 in particular can hardly be overstated. As 
Congress put it when reauthorizing the VRA in 2006, 
section 5 was a “vital prophylactic tool[], protecting 
minority voters from devices and schemes that continue[d] 
to be employed by covered [s]tates and jurisdictions.” H.R. 
Rep. No. 109-478, at 21; see also id. at 24 (“ [T]he existence 
of [sjection 5 deterred covered jurisdictions from even 
attempting to enact discriminatory voting changes.”); S. 
Rep. No. 94-295, at 19 (1975) (“ [I]t is largely [sjection 5 
which has contributed to the gains thus far achieved in 
minority political participation. Moreover, it is [sjection 
5 which serves to insure that this progress shall not be 
destroyed through new procedures and techniques.” ).

Appendix A



6a

The coverage formula in section 4 and the preclearance 
regime in section 5 of the VRA were both originally 
subject to five-year sunset clauses. Northwest Austin, 
557 U.S. at 199. When their scheduled expiration drew 
near in 1970, Congress renewed both provisions and once 
again set an expiration date for five years later. The House 
supported the reauthorization by a vote of 272 to 132, the 
Senate by a margin of 64 to 12. J. Morgan Kousser, The 
Strange, Ironic Career of Section 5 of the Voting Rights 
Act, 1965-2007, 86 Tex. L. R ev. 667, 687 (2008). When the 
next deadline approached in 1975, Congress reauthorized 
both provisions yet again with a seven-year sunset clause, 
this time by a vote of 346 to 56 in the House and 77 to 12 
in the Senate. Id. at 705-06. In 1982, with the seven-year 
window coming to an end, Congress reauthorized both 
provisions a third time, but added a twenty-five-year 
sunset clause. The House voted for reauthorization 389 
to 24 and the Senate 85 to 8. Id. at 707. Finally, in 2006, 
Congress again reauthorized both provisions for another 
twenty-five years. In the House, 390 members supported 
reauthorization, with 33 opposed. Id. In the Senate, the 
vote was 98 to 0 in favor of reauthorization. Id. When he 
signed the reauthorization into law, President George W. 
Bush remarked: “The Voting Rights Act . . . broke the
segregationist lock on the ballot box___Today, we renew a
bill that helped bring a community on the margins into the 
life of American democracy.” Press Release, Office of the 
Press Secretary, The White House, President Bush Signs 
Voting Rights Act Reauthorization and Amendments Act 
ot 2006 (July 27,2006), 2006 WL 2076688, at *1-2. Because 
ol this series of reauthorizations, neither section 4 nor 
section 5 ever expired. Congress made some changes

Appendix A



7a

to the provisions along the way, twice altering the basic 
coverage formula in section 4 so that it would include even 
more jurisdictions. Shelby County, 133 S. Ct. at 2620.

B

Shelby County, Alabama, was covered by the section 5 
preclearance regime under the formula set out in section 
4 of the VRA and challenged the constitutionality of both 
in a suit filed in district court in the District of Columbia.

After losing in the district court and before us, Shelby 
County ultimately prevailed when the Supreme Court 
ruled the coverage formula unconstitutional. Shelby 
County, 133 S. Ct. at 2631. The Court explained that “ ’the 
Framers of the Constitution [also] intended the [s]tates to 
keep for themselves, as provided in the Tenth Amendment, 
the power to regulate elections.’” Id. at 2623 (quoting 
Gregory v. Ashcroft, 501 U.S. 452,461-62, 111 S. Ct. 2395, 
115 L. Ed. 2d 410 (1991)). Moreover, “ [n]ot only do [sjtates 
retain sovereignty under the Constitution, there is also a 
‘fundamental principle of equal sovereignty’ among the 
[s]tates.” Id. (quoting Northwest Austin, 557 U.S. at 203). 
The Court held that the VRA constituted a departure from 
those principles by infringing on the sovereignty of the 
states to design their own electoral process and burdening 
only some states while leaving others unaffected. Id. 
at 2623-24. Congress could only impose burdens that 
departed so significantly from constitutional norms if 
the burdens were justified under “current conditions.” 
Id. at 2627. But, the Court explained, the coverage 
formula had never evolved to match the Nation’s social

Appendix A



8a

and political changes. Congress had “ ignore[d] these 
developments, keeping the focus on decades-old data 
relevant to decades-old problems, rather than current 
data reflecting current needs.” Id. at 2629. Congress could 
not, the Court explained, impair the equal dignity of the 
states and infringe on their sovereignty simply by relying 
on the existence of a problem in the past. Id. Because the 
coverage formula did not adequately target contemporary 
conditions, the Court struck it down. Id. at 2631.

On remand to the district court, Shelby County filed 
a motion for attorneys’ fees, seeking $2 million in fees and 
$10,000 in costs. The 1975 amendments to the VRA had 
introduced a fee-shifting provision at section 14(e) of the 
Act, which provides:

In 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 [attorneys’] fee, 
reasonable expert fees, and other reasonable 
litigation expenses as part of the costs.

52 U.S.C. § 10310(e).1 Shelby County insisted that it had 
prevailed in an “action or proceeding to enforce the

1. The Voting Rights Act was originally codified in Title 42 of 
the United States Code. Section 14(e) was first codified as 42 U.S.C. 
§ 19731(e). On September 1, 2014, the Office of the Law Revision 
Counsel i ecodified the VRA and other provisions related to voting 
and elections into a new Title 52. See Editorial Reclassification, 
Office of the Law Revision Counsel, http://uscode.house.gov/ 
editorialreclassification/t52/index.html (last visited Sept. 1,2015). 
We will cite to the current version of the Code.

Appendix A

http://uscode.house.gov/


9a

voting guarantees” of the Fourteenth and Fifteenth 
Amendments (which, for ease of reference, we shall term 
the Reconstruction Amendments) and so should receive 
fees under section 14(e). The Government opposed. The 
district court sided with the Government, concluding that 
Shelby County was not entitled to fees because, far from 
helping ensure compliance with the VRA, its lawsuit had 
explicitly opposed Congress’s enforcement mechanism 
by trying—and succeeding—to have the coverage formula 
declared unconstitutional.

Shelby County timely appealed. We have jurisdiction 
over a final order of the district court under 28 U.S.C. § 
1291. As the question in this case is whether the district 
court correctly applied the proper legal standard to 
determine whether Shelby County should receive fees, 
we review the decision de novo. See Conservation Force 
v. Salazar, 699 F.3d 538,542,403 U.S. App. D.C. 69 (D.C. 
Cir. 2012).

Appendix A

II

We agree with the district court that Shelby County 
is not entitled to fees.

A

The rules governing this dispute are straightforward. 
Fee-shifting provisions set out the criteria a court must 
use to determine whether a party is even eligible for 
fees. In addition to those statutory criteria, the Supreme 
Court has also created an additional requirement: A party



10a

can only receive fees if it also shows that it is entitled to 
them, meaning that its victory in court helped advance 
the rationales that led Congress to create fee-shifting 
provisions in the first place. Though the entitlement 
requirement does not appear in the text of any fee-shifting 
provision, the Supreme Court has enforced it on a number 
of occasions and both this court and Congress have 
accepted that a prevailing party must show entitlement to 
receive a fee award. See Christiansburg Garment Co. v. 
EEOC, 434 U.S. 412, 418, 98 S. Ct. 694, 54 L. Ed. 2d 648 
(1978) (“ The terms of [the fee-shifting provision in Title 
VII] provide no indication whatever of the circumstances 
under which [a prevailing party] should be entitled to 
attorney’s fees.” (emphasis added)).

The Court has also explained that the primary 
rationale for such fee-shifting provisions-and the only 
rationale on which Shelby County relies to justify its 
entitlement to fees here—is encouraging private parties 
to bring civil rights lawsuits by protecting them from 
the costs of litigation. In no circumstances is a fee award 
a prize. Nor is it a bonus form of compensation to a 
litigant whose position the court finds sympathetic. It is 
an inducement to private parties to engage in favored 
activity. A party is entitled to fees only when it shows 
that its success in litigation advanced the goals Congress 
intended the relevant fee-shifting provision to promote. 
When a party’s success did not advance those goals, it is 
not entitled to fees.

The Court first explained this standard in Neivman v. 
Piggie Park Enterprises, Inc., 390 U.S. 400,88 S. Ct. 964,

Appendix A



11a

19 L. Ed. 2d 1263 (1968). In Piggie Park, a district court 
had refused to award fees to parties who unmistakably 
prevailed in a suit brought under Title II of the Civil 
Rights Act of 1964. The Court found that refusal an error. 
The prevailing parties were entitled to fees and so the 
district court was required to award them. The Court 
explained that Congress meant for fee-shifting provisions 
in civil rights statutes to encourage private parties to 
bring their own civil rights litigation. Congress was well 
aware that “ the Nation would have to rely in part upon 
private litigation as a means of securing broad compliance” 
with Title II, given the obvious impossibility of the federal 
Government identifying and prosecuting every violation. 
Id. at 401. Indeed, the Court continued, a private party 
bringing a civil rights suit “does so not for himself alone 
but also as a private attorney general, vindicating a policy 
that Congress considered of the highest priority.” Id. 
at 402 (internal quotation marks omitted). Yet without 
a provision enabling prevailing parties to recover their 
fees, “successful plaintiffs” would be “routinely forced 
to bear their own attorneys’ fees,” meaning that “ few 
aggrieved parties would be in a position to advance the 
public interest” by bringing civil rights litigation. Id. This 
obviously posed a problem, given congressional awareness 
that private litigation was an indispensable element of any 
successful enforcement program. See, e.g., Allen v. State 
Bd. of Elections, 393 U.S. 544, 556, 89 S. Ct. 817, 22 L. 
Ed. 2d 1 (1969) (“The achievement of the Act’s laudable 
goal could be severely hampered . . .  if each citizen were 
required to depend solely on litigation instituted at the 
discretion of the Attorney General.”). Congress solved 
this problem with fee-shifting provisions. In other words,

Appendix A



12a

Congress enacted fee-shifting provisions to encourage 
victims of discrimination to invest the resources needed to 
litigate civil rights violations and to distribute the cost of 
successful enforcement among lawbreakers. Because the 
prevailing parties in Piggie Park had acted as “the chosen 
instrument of Congress,” Christiansburg Garment, 434 
U.S. at 418, by helping to “secur[e] broad compliance” with 
Title II, Piggie Park, 390 U.S. at 401, they were entitled 
to fees.

Decades ago, we held that the Piggie Park standard 
also governs claims for attorneys’ fees under the VRA. See 
Donnell v. United States, 682 F.2d 240,245,220 U.S. App. 
D.C. 405 (D.C. Cir. 1982) (“ ’Congress depends heavily upon 
private citizens to enforce the fundamental rights involved 
[in the Voting Rights Act]. [Fee] awards are a necessary 
means of enabling private citizens to vindicate these 
Federal rights.’” (quoting S. Rep. No. 94-295, at 40 (1975))). 
Shelby County insists that it is entitled to fees under 
Piggie Park. We disagree. Shelby County is not entitled 
to fees because its challenge to the constitutionality of the 
coverage formula did not help “securfej broad compliance 
with” the VRA. Piggie Park, 390 U.S. at 401.

As a general matter, a plaintiff who prevails in a lawsuit 
in connection with a civil rights statute typically will have 
helped enforce that statute exactly as Congress hoped 
and so will usually be entitled to fees under Piggie Park. 
See Piggie Park, 390 U.S. at 402 (“ [0]ne who succeeds in 
obtaining an injunction under [Title II] should ordinarily 
recover an attorney’s fee unless special circumstances 
would render such an award unjust.”). But the Court has

Appendix A



13a

made very clear that success in a lawsuit alone does not 
resolve the separate question of whether the successful 
party is entitled to fees. See Christiansburg Garment, 
434 U.S. at 418 (explaining that merely prevailing in an 
action under Title VII “provide[s] no indication whatever 
of the circumstances under which [the prevailing party] 
should be entitled to attorney’s fees.” (emphasis added)). 
Instead, entitlement turns on whether the prevailing 
party’s success advanced the purposes Congress meant 
to promote by making fees available—in particular, under 
the Piggie Park standard, whether the prevailing party 
helped “secur[e] broad compliance” with the civil rights 
statute in question. Piggie Park, 390 U.S. at 401.

For example, in Christiansburg Garment, an employer 
was accused of wrongful discrimination in violation of 
Title VII of the Civil Rights Act of 1964. 434 U.S. at 414. 
The defendant employer prevailed in the subsequent 
litigation, proving that it had not discriminated unlawfully. 
Having prevailed in a Title VII suit, the defendant was 
thus eligible for fees under the text of the statute’s fee- 
shifting provision. The defendant insisted that it was also 
entitled to fees under Piggie Park for the same reason: 
It had won in court and so should receive fees. The Court 
rejected this argument. The Piggie Park standard entitles 
parties to receive fees for which they may be eligible 
only when they shoulder the burden of acting as “ the 
chosen instrument of Congress” and “vindicate ‘a policy 
that Congress considered of the highest priority’” by 
enforcing compliance with a statute. Id. at 418 (quoting 
Piggie Park, 390 U.S. at 402). The defendant employer in 
Christiansburg Garment did nothing more than prove

Appendix A



14a

it had not engaged in the alleged misconduct. Therefore, 
even though the defendant prevailed and was eligible for 
fees, it was not entitled to them under the Piggie Park 
standard.

The Court came to effectively the same conclusion 
in a different context in Independent Federation of 
Flight Attendants v. Zipes, 491 U.S. 754,109 S. Ct. 2732, 
105 L. Ed. 2d 639 (1989). In Zipes, an intervenor union 
opposed the settlement of a Title VII class action by a 
class of employees against their employer, arguing that 
the collective bargaining agreement should preclude the 
employer from agreeing to the settlement. After the 
employees won judicial approval for the settlement of their 
class action, they argued that they were entitled to have 
the intervenor pay their fees. Just as in Christiansburg 
Garment, the Court found that the plaintiffs were not 
entitled to fees, even though they had prevailed, because 
Congress did not mean to use fee-shifting provisions as 
a general reward for victory. Id. at 761-64. Instead, fee- 
shifting provisions are designed to further the “central 
purpose” of civil rights statutes-”vindieating the national 
policy against wrongful discrimination by encouraging 
victims to make the wrongdoers pay at law.” Id. at 761. 
The plaintiffs in Zipes had not helped enforce compliance 
with Title VII by fighting with the intervenor union over 
which of the employer’s legal obligations would take 
precedence. Therefore they were not entitled to fees from 
the intervenor under the Piggie Park standard.

In both Christiansburg Garment and Zipes, the 
Court also explained that Congress intended fee-shifting

Appendix A



15a

provisions in civil rights statutes to require parties who 
took “ frivolous” or “unreasonable” positions to pay the fees 
of their successful opponents. Christiansburg Garment, 
434 U.S. at 421; Zipes, 491 U.S. at 761. In both cases, the 
Court relied on this secondary rationale to craft a separate 
standard for fee awards to a party that successfully 
defeats such vexatious arguments. But in neither case 
could the prevailing parties rely on the Piggie Park 
standard because, though each party had won an action 
brought under a civil rights statute, neither had helped 
ensure compliance with the civil rights laws.2

B

1

Section 14(e) of the VRA permits district courts 
to award fees to a party who prevailed in an “action 
or proceeding to enforce the voting guarantees of the 
fourteenth or fifteenth amendment.” 52 U.S.C. § 10310(e). 
To show that it is eligible for fees under the statute, 
Shelby County must demonstrate that it prevailed 
in an action to enforce the voting guarantees of the 
Reconstruction Amendments. The Government concedes 
that Shelby County is a “prevailing party,” but argues 
that it is nonetheless not eligible for fees because its 
lawsuit did not enforce the “voting guarantees” of the 
Reconstruction Amendments. As it turns out, this is

Appendix A

2. In both Christiansburg Garment and Zipes, the Court 
went on to conclude that the prevailing plaintiffs were not entitled 
to fees under the alternative frivolous litigation standard.



16a

a difficult question. The Government submits that the 
only “voting guarantees” secured by those amendments 
are individual voting rights and that Shelby County’s 
lawsuit was aimed instead at vindicating the structural 
rights of states and other political jurisdictions. Shelby 
County insists to the contrary that the Reconstruction 
Amendments “reflect guarantees to individuals and 
states alike: to individuals, to be free from discrimination; 
and to states, to be free from unwarranted regulation.” 
To settle this dispute we would need to determine what 
voting rights the Reconstruction Amendments actually 
guarantee.

However. Shelby County could not win fees even if 
it were correct about the contours of the Reconstruction 
Amendments. Section 14(e) serves only to identify those 
eligible for fees. As we have explained, the prevailing 
party must also show that it is entitled to fees. See 
Christiansburg Garment. 434 U.S. at 418 (“The terms 
of [the fee-shifting provision in Title VII] provide no 
indication whatever of the circumstances under which [a 
prevailing party] should be entitled to attorney's fees "  
(emphasis added)); cf. Natiomeide Bldg. MainL, Inc. v. 
So —.peon. 559 F.2d 704. 710.182 U.S. App. D.C. 83 (D.C.

xplaining that a prevailing party’s "eligibility 
for an award of attorney fees does not mean that it is 
necessarily entitled to such an award” (emphasis added)).

As we will explain below. Shelby County is not entitled 
to attorneys' fees because its lawsuit did not advance 
any of the purposes that Congress meant to promote 

'taking fees available. Therefore we do not need to

Appendix A



17a

determine whether Shelby County or the Government is 
correct about what “voting guarantees” are secured by 
the Reconstruction Amendments. Resolving that question 
is immaterial to the outcome of this case. And because we 
need not answer that constitutional question, we will not 
do so. See, e.g., Elk Grove Unified Sch. Disk v. Newdow, 
542 U.S. 1, 11, 124 S. Ct. 2301, 159 L. Ed. 2d 98 (2004) 
(advising courts “ to guard jealously and exercise rarely 
our power to make constitutional pronouncements”); PDK 
Labs. Inc. v. U.S. Drug Enforcement Agency, 362 F.3d 
786,799,360 U.S. App. D.C. 344 (D.C. Cir. 2004) (Roberts, 
J., concurring in part and concurring in the judgment) 
(“ [T]he cardinal principle of judicial restraint—if it is not 
necessary to decide more, it is necessary not to decide 
more—counsels us to go no further.” ).

2

We agree with the district court that Shelby County 
is not entitled to fees under Piggie Park. Shelby County’s 
argument boils down to the proposition that Congress 
introduced the fee-shifting provision into the VRA in 1975 
with the express goal of inducing a private party to bring 
a lawsuit to neuter the Act’s central tool. But that makes 
no sense. As we know from numerous statements by the 
Supreme Court, Congress enacted fee-shifting provisions 
in civil rights statutes to “securfe] broad compliance” with 
those statutes, not to immobilize them. Piggie Park, 390 
U.S at 401. Nor did Congress need to enlist private suits 
to challenge the constitutionality of the coverage formula 
in the way that it needed to rely on private parties to 
pursue individual enforcement litigation. See id. (“ [T]he

Appendix A



18a

Nation would have to rely in part upon private litigation as 
a means of securing broad compliance with the law.” ); see 
also Allen, 393 U. S. at 556 (“ The achievement of the Act’s 
laudable goal could be severely hampered...  if each citizen 
were required to depend solely on litigation instituted at 
the discretion of the Attorney General.”). To the contrary, 
Congress carefully preserved the power to invalidate 
the coverage formula by repeatedly including a sunset 
provision that would ensure the formula’s expiration at 
some point in the future absent new authorization. Because 
of these successive sunset clauses, invalidating provisions 
of the Act did not even require both houses of Congress 
and the President to agree. Either house of the legislature 
could have refused to pass reauthorizing legislation, or 
the President could have refused to sign it, and thereby 
invalidated the coverage formula or forced alteration to 
the provision by insisting on revisions before agreeing to 
reauthorization legislation.

In other words, Shelby County’s lawsuit neither 
advanced Congress’s purpose nor performed some service 
Congress needed help to accomplish. It defies common 
sense and ignores the structure and history of the Act 
to think otherwise. Therefore we conclude that Shelby 
County is not entitled to fees under the Piggie Park 
standard.

Shelby County tries to justify its entitlement to fees 
by relying on a number of counterarguments. None 
persuade us. Most importantly, Shelby County points to 
section 14(b) of the Act. which provides that ‘*[n]o court 
other than the District Court for the District of Columbia

Appendix A



19a

shall have jurisdiction to issue any declaratory judgment 
. . .  or any restraining order or temporary or permanent 
injunction against the execution or enforcement of any 
provision” of the VRA. 52 U.S.C. § 10310(b). Shelby 
County argues that section 14(b) created a new cause of 
action authorizing constitutional challenges to the VRA. 
Therefore, the argument goes, Congress must have meant 
to encourage constitutional challenges. If not, it would 
have had no reason to establish a cause of action allowing 
private parties to bring such challenges. And if so, Shelby 
County insists that its success in striking down section 
4 advanced Congress’s purposes after all. On this peg 
Shelby County has hung its hopes.

But it is by no means clear that section 14(b) creates 
a new cause of action. The more natural reading is that 
the provision simply limits jurisdiction over constitutional 
challenges to the VRA to the District Court for the 
District of Columbia. The available evidence supports this 
view. To begin with, Congress had no need to create a new 
cause of action. The grants of jurisdiction in 28 U.S.C. 
§ 1331 and in the Declaratory Judgment Act, 28 U.S.C. 
§ 2201, provide adequate authorization for any attack 
on the VRA’s constitutionality. Because parties already 
had all the authorization they needed to mount lawsuits 
arguing that the Act was not constitutional, Congress 
had no need to create a new cause of action for such 
suits. We also note that Attorney General Katzenbach’s 
testimony during the Senate hearings on the VRA 
strongly suggests that section 14(b) is a venue provision.3

Appendix A

3. Attorney General Katzenbach was one of the principal 
drafters of the VR A. See Dougherty Cnty., Ga., Bd. of Ed. v.



20a

During the Senate hearings, General Katzenbaeh was 
asked the purpose of section 14(b). He explained that it 
would channel all significant VRA litigation, enforcement 
suits and constitutional challenges alike, into one court, 
and prevent multiple parallel constitutional challenges 
unfolding in courts throughout the country. To Enforce 
the 15th Amendment to the Constitution of the United 
States: Hearing on S.1564 Before the S. Comm, an the 
Judiciary. 89th Cong, at 144 (1965) (statement of Nicholas 
Katzenbaeh. Attorney General of the United States) (“ [T] 
he [preclearance] determinations are to be made in the
three-judge court in the District of Columbia___ And it
seems to us that if the integrity of that practice were to be 
preserved, then you had to have a corresponding provision 
here, otherwise you are going to have the act tested in 
a variety of different courts. So it seemed to us that the 
important thing was to get this act tested, to get it tested 
in one court, and not to interfere with the jurisdiction of 
that court, and provide an appeal to the Supreme Court." 
emphasis added . General Katzenbaeh said nothing about 

encouraging or authorizing constitutional challenges.

The Supreme Court seems to have put this issue to 
rest in AUen u State Board of Elections. 393 U.S. 544,89

Appendix A

White, 439 UJS. 32,37.99 S. Ct. 368.581.. Ed. 2d 269 (1978). The 
C curt r.as often relied on his testimony to Congress regarding 
the Act to help illuminate the statutes terms. See. e.g.. Reno r. 
Bossier Parish Srit BdL, 528 U.S. 320. '  20 S. Ct. 866,145 L.

_ d 845 (2000); McCain c. Lybmnd, 465 U.S. 236.247,104 S. 
Ct. 103«. 79 L. Ed. 2d 2 d  il9S4>: ( nited States r. Bd. ofComm'rs 
ofShrf.- A  Ala.. 435 U.S. 110.12S n.15.142-46.98 S. Ct. 965.55 
L. Ed. 2d 14S (1978): AUen. 393 U.S. at 567.



21a

S. Ct. 817, 22 L. Ed. 2d 1 (1969). In Allen, the Court held 
that private citizens can sue for declaratory judgment that 
a jurisdiction must obtain preclearance for any change in 
voting practices. The Court also held that citizens could 
file such actions anywhere in the country, not only in the 
District of Columbia. In reaching this conclusion the Court 
explained that section 14(b) imposed a “restriction” on 
lawsuits authorized by some other cause of action; it never 
suggested that the provision authorized or created a cause 
of action for suits. Id. at 560 (emphasis added). The Court 
also noted that section 14(b) presented a “question involving 
the jurisdiction of the district courts,” not involving the 
right of parties to bring lawsuits. Id. at 557 (emphasis 
added). The discussion in Allen strongly indicates that 
section 14(b) is only a venue provision. And a number of 
other Supreme Court cases that mention section 14(b) in 
passing also uniformly refer to it as a venue provision, 
not as a cause of action. See Shaw v. Reno, 509 U.S. 630, 
637,113 S. Ct. 2816,125 L. Ed. 2d 511 (1993) (noting that 
section 14(b) “vests the District Court for the District of 
Columbia with exclusive jurisdiction to issue injunctions 
against the execution of the Act” ); Hathorn v. Lovorn, 
457 U.S. 255, 267,102 S. Ct. 2421, 72 L. Ed. 2d 824 (1982) 
(noting that section 14(b) raised a “jurisdictional” issue); 
Katzenbach v. Morgan, 384 U.S. 641,645,86 S. Ct. 1717,16 
L. Ed. 2d 828 (1966) (noting that, “ [pursuant to [section] 
14(b),” parties challenging the VRA’s constitutionality had 
“commenced [their] proceeding in the District Court for 
the District of Columbia”).4

Appendix A

4. The Fifth and Ninth Circuits have also referred to section 
14(b) solely as a venue provision. See Brown v. City of Shreveport, 
158 F.3d 583, *1 [published in full-text format at 1998 U.S. App.



22a

Shelby County points to a single sentence in Allen, 
in which the Court referred to section 14(b) as one of the 
“Act’s enforcement provisions” and said that a suit of the 
kind identified in section 14(b) “would involve an attack on 
the constitutionality of the Act itself.” 393 U.S. at 558. We 
do not understand why Shelby County thinks this remark 
helps its case. Given that section 14(b) requires any attack 
on the constitutionality of a VRA provision to be filed in 
federal court in the District of Columbia, all such cases 
necessarily come under the heading of a “ section 14(b) 
injunctive action,” irrespective of whether that section also 
serves to create a cause of action. The Court’s remark in 
Allen therefore proves nothing either way.5 And as we have 
just said, the rest of the Court’s discussion of section 14(b) 
in Allen suggests much more strongly that the section is 
a jurisdictional venue provision, not a cause of action.

LEXIS 39629] (5th Cir. 1998) (per curiam) (unpublished) (citing 
section 14(b) to explain that "[t]he district court for the District 
of Columbia has exclusive jurisdiction over actions against federal 
officers or employees challenging the enforcement of the Voting 
Rights Act”); Reich v. Larson, 695 F.2d 1147,1149 (9th Cir. 1983) 
holding that, under section 14(b). constitutional challenges to the 

VRA “can only be brought in the District of Columbia district 
court").

Appendix A

5. Shelby County also insists that the Supreme Court 
understood section 14tb) to create a cause of action when it 
mentioned in A.-.-conro.-c r. Morgan that “[pjursuam to [section] 
14(b),’  the parties challenging the VR A s constitutionality in that 
case had “commenced [the] proceeding in the District Court for the 
V str:.-: . • • •  .t: -A? She'.by C :u r :y s  reliance
or. a  o:: is even more mystifying than its reliance on A ik  n.
As we have already said, this remark apparently indicates that 
the Conn in Kaize^bach perceived section lA  b> as no more than 
a venae provision.



23a

In any event, even if Shelby County were right 
that section 14(b) creates a cause of action—a dubious 
proposition given the evidence—the County still would 
not be entitled to fees under the Piggie Park standard. 
Piggie Park does not ask whether Congress intended to 
authorize Shelby County’s challenge. The only question 
under Piggie Park is whether Congress intended to 
encourage constitutional challenges to the VRA as a way 
of “securing broad compliance” with the statute, Piggie 
Park, 390 U.S. at 401, and thus made attorneys’ fees 
available to promote such challenges. Shelby County has 
not given us any reason to believe that Congress did so. 
Shelby County’s lawsuit did not facilitate enforcement 
of the VRA; it made enforcing the VRA’s preclearance 
regime impossible. And as we have already explained, 
Congress did not need to rely on private challenges to 
the Act’s constitutionality. The fact that Congress may 
have created a cause of action permitting such a suit 
does nothing to persuade us, in the face of these other 
considerations, that Congress also intended to use fees 
to encourage suits that sought to strike down its own 
carefully crafted enforcement program. Therefore Shelby 
County’s insistence that section 14(b) creates a cause of 
action is irrelevant.

Shelby County tries to bolster its argument by 
explaining all the reasons why Congress might have 
regarded constitutional challenges to the VRA as socially 
beneficial. But as we have already said, the Piggie Park 
standard does not determine fee entitlement based on 
whether Congress would applaud or condemn an individual 
litigant. Instead, entitlement under Piggie Park turns

Appendix A



24a

on whether Congress intended to use fees to encourage 
the prevailing party’s litigation as part of a program for 
ensuring compliance with the Act. Though Shelby County 
may have vindicated other values, invalidating one of the 
VRA’s central provisions did not promote compliance with 
the Act.

Shelby County’s other arguments are no more 
persuasive. For example, Shelby County insists we 
must find it entitled to fees because winning this lawsuit 
enforced the voting guarantees of the Reconstruction 
Amendments. This argument thoroughly misses the point. 
Whether Shelby County defended the rights secured in 
the Reconstruction Amendments is relevant to whether 
the County is eligible for fees, not whether it is entitled 
to them. We do not decide whether Shelby County is right 
about the contours of those Amendments because we 
do not need to do so. Shelby County did not help secure 
compliance with the VRA by convincing the Court to strike 
down the VRA’s signature statutory device. Therefore 
Shelby County is not entitled to fees under Piggie Park.

Shelby County also points out that “nothing in the 
legislative history suggests that Congress was disavowing 
promotion of other types of litigation authorized under the 
statute. . . . ” Perhaps, but the legislative history does make 
clear that Congress intended for courts to award fees 
under the VRA, pursuant to the Piggie Park standard, 
when prevailing parties helped secure compliance with 
the statute. Most notably, the Senate Report explains that 
Congress was adopting section 14(e) because the Nation 
“depends heavily on private citizens to enforce” the Act.

Appendix A



25a

S. Rep. No. 94-295, at 40 (1975). Shelby County cannot 
plausibly argue that Congress “depend[ed] heavily on 
private citizens” to bring constitutional challenges to the 
coverage formula, especially because the sunset provision 
empowered even one house of the legislature to invalidate 
section 4 by refusing to support reauthorization.

Shelby County insists that if it is not entitled to fees, 
the incentives to bring VRA actions would be distorted. 
Other jurisdictions seeking to invalidate provisions of 
the VRA on constitutional grounds in the future would 
have to bear the costs of litigating those challenges, while 
facing the prospect, if they lost, of fee liability to private 
parties that intervened on the Government’s behalf. The 
distorted incentives of which Shelby County warns seem 
at best hypothetical. Shelby County has not identified any 
case in which an intervenor-defendant has obtained fees 
from a plaintiff jurisdiction for helping the Government 
defend the VRA’s constitutionality, nor have we found such 
a case ourselves. Thus Shelby County’s fear that future 
unsuccessful challengers would face the prospect of paying 
the fees of intervenor-defendants is mere speculation. 
Moreover, Shelby County does not seem to believe that 
these distorted incentives would actually materialize. In 
its reply brief Shelby County maintained that it would not 
have been liable for fees as to the intervenor-defendants 
in this case had Shelby County lost. But more to the point, 
even if we accepted Shelby County’s prognostication and 
overlooked the internal contradictions of its argument, 
this issue is not relevant to our decision here. We need not 
decide whether our legal conclusion would actually create 
unequal litigation incentives or weigh the undesirability of

Appendix A



26a

that consequence as a matter of policy. Such considerations 
are the province of Congress, not the courts.

Shelby County also argues that finding it not entitled 
to fees would merely constitute punishment because we 
dislike the results of Shelby County’s success even though 
“unsympathetic litigants” routinely win fees when they 
prevail under civil rights statutes. Appellant’s Br. 33-34. 
As an initial matter, we reject Shelby County’s premise. 
Our decision in no way rests on any assessment of the 
social value of Shelby County’s suit. Nor do we find Shelby 
County not entitled to fees based on the assumption that 
it brought this suit as an “opponent of individual voting 
rights.” Id. at 43.

What is more, Shelby County misapprehends the 
cases on which this argument relies. The “unsympathetic” 
litigants Shelby County identifies won fee awards when 
they helped to enforce the statute in question, irrespective 
of whether the legal theory or practical effect of that 
suit was universally appealing. Some observers may be 
surprised, puzzled, or even upset when, pursuant to a 
fee-shifting provision, a court awards fees to a Caucasian 
man in a VRA suit, see Maloney v. City of Marietta, 822 
F.2d 1023, 1026 (11th Cir. 1987), or a large corporation 
in a § 1983 suit, see Sable Commc’ns of Cal. Inc. v. Pac. 
Tel. & Tel. Co., 890 F.2d 184,193 (9th Cir. 1989), or even 
wealthy plaintiffs who sued a state government, see Lavin 
v. Hasted, 764 F.3d 646, 650-51 (6th Cir. 2014). But when 
prevailing parties-no matter who they are-help enforce 
a civil rights statute, they are entitled to fees. Shelby 
County’s problem here is not that this lawsuit may have

Appendix A



27a

upset some observers. We find Shelby County not entitled 
because its lawsuit did not enforce compliance with the 
VRA and because Congress did not intend to use fees to 
encourage the invalidation of the Act’s provisions.

In the same vein, Shelby County argues that we 
should be guided here by the analysis that persuaded 
the court to grant fees in Lawrence v. Bowsher, 931 
F.2d 1579, 289 U.S. App. D.C. 346 (D.C. Cir. 1991). In 
that case, the district court dismissed a former federal 
employee’s claim that he had been unlawfully discharged 
from his job, finding that he had not first exhausted the 
administrative remedies required under Title VII. Id. at 
1580. The plaintiff successfully argued to us that Title 
VII did not apply to his class of federal employees and so 
he was not subject to an exhaustion requirement. Id. As a 
result, other federal employees who belonged to the same 
category as the plaintiff were then excluded from the scope 
of Title VII and no longer benefitted from its protections. 
Id. After prevailing, the plaintiff sought attorneys’ fees 
under Title VII. Id. The district court refused to grant 
fees, concluding that a plaintiff whose lawsuit “was 
positively harmful to the civil rights of others” should 
not receive a fee award under a civil rights statute. Id. 
(internal quotation marks omitted). We disagreed, holding 
that “ [a] district court may not deny fees to a prevailing 
plaintiff simply because his litigating position, although 
a correct interpretation of the law, does not comport 
with the court’s vision of a position that would, in a broad 
sense, protect civil rights.” Id. (internal quotation marks 
omitted). Shelby County submits that this case is exactly 
analogous to Lawrence v. Bowsher. We should not deny

Appendix A



28a

fees simply because some observers find the invalidation 
of the coverage formula undesirable as a matter of policy. 
We disagree with Shelby County’s reading of Lawrence 
v. Bowsher. We think that case helps illustrate exactly 
how Shelby County’s suit differs from those in which 
prevailing parties are entitled to fees. The plaintiff there 
contributed to enforcement of Title VII by defining the 
category of individuals that Congress intended to protect, 
ensuring that the actions Congress meant to prohibit—and 
no other actions—would be prosecuted. That is precisely 
the kind of private enforcement action Congress meant 
the fee-shifting provision to encourage. Not so here. 
Shelby County defeated Congress’s plans for enforcement 
of the VRA by invalidating the coverage formula and 
immobilizing section 5. Of course, as we have learned, 
Congress’s plans violated the Constitution. But Shelby 
County’s suit, unlike the suit in Lawrence v. Bowsher, 
did not contribute to enforcement of the VRA. For that 
reason Shelby County is not entitled to fees.

Finally, Shelby County argues that the approach 
we have taken to understanding section 14(e) is in error. 
Shelby County accepts that the Supreme Court has several 
times, in Piggie Park, Christiansburg Garment, and 
Zipes, discussed and relied on the purposes Congress 
intended to advance through fee awards. And Shelby 
County admits that in those cases the Court explained 
that prevailing parties are entitled to fees when their 
lawsuits advanced one or another purpose that Congress 
planned to advance by enacting the fee-shifting provision. 
Shelby County even acknowledges that we have adopted 
the Piggie Park standard to govern fee entitlement under

Appendix A



29a

section 14(e). See Donnell, 682 F.2d at 245. Yet Shelby 
County insists nonetheless that neither we nor the Court 
has ever taken the additional step of determining the 
specific kind of plaintiff, argument, or motivation that 
Congress had intended to reward with fees. But we have 
not based our approach on such considerations. Rather, 
we have applied the Piggie Park standard as directed by 
the Court and as urged by Shelby County. Under that 
standard, we have considered whether the outcome of 
Shelby County’s suit—the invalidation of the coverage 
formula of the V R A —was the kind of outcome that 
Congress thought would enhance enforcement of the VRA 
and made fees available to promote. We think it was not. 
Therefore Shelby County is not entitled to fees.

C

Even though Shelby County has based its argument 
for fees entirely on Piggie Park, the district court 
considered whether Shelby County might also be entitled 
to fees under the Christiansburg Garment standard, 
which would allow a fee award only if the Government’s 
defense of the coverage formula’s constitutionality was 
frivolous or without foundation. See Shelby County, 43 
F. Supp. 3d at 68-71. But since Shelby County has never 
maintained that it could even theoretically obtain fees 
under that standard, we do not believe we should resolve 
whether Christiansburg Garment should sometimes 
apply in cases like this one. It is enough to resolve this 
fee dispute by holding that Shelby County is not entitled 
to fees under the only standard it has urged us to apply.

Appendix A



30a

Appendix A 

III

For the foregoing reasons, we affirm the district 
court’s denial of Shelby County’s application for attorneys’ 
fees.



31a

Tatel, Circuit Judge, concurring: Although I agree 
with Judge Griffith that Shelby County is not entitled to 
recover attorneys’ fees, I find nothing at all “difficult” 
about the question whether the County is even eligible for 
fees under section 14(e) of the Voting Rights Act. See Op. at 
14. Resolving this case on that threshold issue, moreover, 
would not require us “to decide more. . .  [than] necessary,” 
id. at 15 (internal quotation marks omitted)—or, for that 
matter, any new question of law.

Recall that Shelby County is eligible for fees only if 
its lawsuit—an action to invalidate the VRA’s preclearance 
regime—qualifies as an “action or proceeding to enforce 
the voting guarantees of the fourteenth or fifteenth 
amendment.” 52 U.S.C. § 10310(e). As filed and briefed, 
the County’s suit does not meet this standard. Neither in 
its complaint nor in any brief filed in the district court, 
this court, or the Supreme Court did Shelby County 
even hint that its suit would protect any voting right 
guaranteed by the Fourteenth or Fifteenth Amendment. 
Instead, as Judge Bates recognized in rejecting the 
County’s request for fees, Shelby County expressly and 
repeatedly stated that it sought to enforce the Tenth 
Amendment by “vindicating] federalism interests and 
the ‘fundamental principle of equal sovereignty’ among the 
states.” Shelby County, Alabama v. Holder, 43 F. Supp. 3d 
47, 57 (D.D.C. 2014) (quoting Compl. 1143); see also Br. for 
Shelby County at 23, Shelby County, Alabama v. Holder, 
133 S. Ct. 2612, 186 L. Ed. 2d 651 (2013) (contending 
that V R A  preclearance provisions “encroach[ed] on 
Tenth Amendment rights”). Indeed, in its cert petition, 
Shelby County framed the relevant question as whether

Appendix A



32a

Congress’s reauthorization of Section 5 of the Voting 
Rights Act “exceeded its authority under the Fifteenth 
Amendment and thus violated the Tenth Amendment 
and Article IV of the United States Constitution,” and it 
was on this issue that the County ultimately prevailed. 
See Shelby County, 133 S. Ct. at 2623, 2631 (invalidating 
V R A ’s preclearance coverage formula under Tenth 
Amendment). But now seeking to qualify for fees under 
section 14(e), the County has changed its tune, claiming 
that its suit in fact sought to enforce the Fourteenth and 
Fifteenth Amendments’ “voting guarantees,” 52 U.S.C. § 
10310(e), by vindicating what it calls those Amendments’ 
“guarantee of local voting autonomy,” Appellant’s Reply 
Br. 3. This claim is meritless.

Anyone wishing to discover what “voting guarantees” 
the Fourteenth and Fifteenth Amendments protect must 
begin with the Amendments’ text. Section One of the 
Fifteenth Amendment provides that the “right of citizens 
of the United States to vote shall not be denied or abridged 
by the United States or by any State on account of race, 
color, or previous condition of servitude.” Section One of 
the Fourteenth Amendment declares, among other things, 
that “ [n]o State shall . . . deny to any person within its 
jurisdiction the equal protection of the laws.”

Obviously, neither of these provisions includes any 
guarantee of state autonomy over voting. By its plain 
terms, the Fifteenth Amendment enshrines only one 
“voting guarantee,” i.e., the “right of citizens of the 
United States to vote” free from discrimination based 
on “ race, color, or previous condition of servitude.”

Appendix A



33a

Furthermore, and contrary to Shelby County’s claim that 
the Amendment protects “state autonomy over voting,” 
Appellant’s Reply Br. 14, the Amendment’s prohibition 
against discrimination is expressly directed at the 
states. And although the Fourteenth Amendment says 
nothing about “voting guarantees”—indeed, as adopted, 
the Amendment did not even protect the right to vote- 
-the Supreme Court has subsequently interpreted the 
Amendment’s Equal Protection Clause as “guarantee[ing] 
the opportunity for equal participation by all voters.” 
Reynolds v. Sims, 377 U.S. 533, 566, 84 S. Ct. 1362, 12 
L. Ed. 2d 506 (1964). Like the Fifteenth Amendment, 
moreover, it secures that right against the states. The 
two Amendments thus “guarantee” not state autonomy, 
but rather the right of citizens to vote, and they expressly 
guarantee that right against state interference.

Shelby County, however, claims to have found a 
“concomitant guaranteef]” of local voting autonomy 
lurking in the two Amendments’ enforcement provisions. 
Appellant’s Br. 14. That Congress may enforce the 
Amendments only by “appropriate” legislation, the County 
insists, means that the enforcement provisions guarantee 
“the constitutional right of sovereign States...  to regulate 
state and local elections as they see fit.” Id. at 43. But 
this claim finds no support in the constitutional text. 
Section Two of the Fifteenth Amendment provides that 
“ [t]he Congress shall have power to enforce this article 
by appropriate legislation.” Using virtually identical 
language, Section Five of the Fourteenth Amendment 
provides that “ [t]he Congress shall have power to enforce, 
by appropriate legislation, the provisions of this article.”

Appendix A



34a

By their plain text, neither clause “guarantees” any right, 
voting or otherwise. Rather, they give Congress power 
to enforce the “articles,” i.e., equal protection of the laws 
(Fourteenth Amendment) and the right of citizens to 
vote free from discrimination based on race (Fifteenth 
Amendment).

Shelby County cites nothing to support its argument 
that the two enforcement clauses somehow also protect 
state autonomy, and for good reason. Added to the 
Constitution in the wake of this nation’s bloody civil war 
to “ take away all possibility of oppression by law because 
of race or color,” Ex parte Virginia, 100 U.S. 339, 345, 
25 L. Ed. 676 (1880), the Amendments were intended to 
limit state autonomy, not protect it. Owing largely to their 
enforcement provisions, see id., they “established] . . . 
the federal government as the main protector of citizens’ 
rights,” granting “ the national state the authority to 
intervene in local affairs to protect the basic rights of 
all American citizens,” Eric Foner, The Supreme Court 
and the History of Reconstruction-and Vice Versa, 112 
C olumbia L. Rev. 1585,1587 (2012).

The Supreme Court has long recogn ized  this 
proposition. In Ex parte Virginia, decided just years 
after the Fifteenth Amendment’s ratification, the Court 
declared that the Reconstruction Amendments “were 
intended to be, what they really are, limitations of the 
power of the States and enlargements of the power of 
Congress.” 100 U.S. at 345. With respect to Congress’s 
power to enforce the Amendments, the Court explained:

Appendix A



35a

W hatever legislation is appropriate, that 
is, adapted to carry  out the objects the 
amendments have in view, whatever tends 
to enforce submission to the prohibitions 
they contain, and to secure to all persons the 
enjoyment of perfect equality of civil rights and 
the equal protection of the laws against State 
denial or invasion, if not prohibited, is brought 
within the domain of congressional power.

Id. at 345-46 (emphasis added). In Fitzpatrick v. 
Bitzer, the Court, elucidating Congress’s authority to 
enforce the substantive guarantees of the Fourteenth 
Amendment, recognized that the Amendment “quite 
clearly contemplates limitations on [the states’] authority.” 
427 U.S. 445, 453, 96 S. Ct. 2666, 49 L. Ed. 2d 614 (1976). 
And in City ofBoerne v. Flores, the Court, harkening back 
to Ex parte Virginia, emphasized that the Reconstruction 
Am endm ents’ enforcem ent provisions ensure that 
Congress has “ the power to make the [Amendments’] 
substantive constitutional prohibitions against the States 
effective.” 521 U.S. 507, 522, 117 S. Ct. 2157, 138 L. Ed. 
2d 624 (1997). The Court explained that they constitute 
a “positive grant of legislative power to Congress,” 
authorizing “ [legislation  which deters or remedies 
constitutional violations . . . even if in the process i t . . . 
intrudes into legislative spheres of autonomy previously 
reserved to the States.” Id. at 517-18 (internal quotation 
marks omitted).

Given this century and a half of precedent, rejecting 
Shelby County’s argument hardly requires that we

Appendix A



36a

“make constitutional pronouncements,” Op. at 15 (internal 
quotation marks omitted), or otherwise attempt to delimit, 
once and for all, the precise contours of the Reconstruction 
Amendments, see id. at 14, 21. It suffices to recognize, 
as the Supreme Court has time and again, that the 
Fourteenth and Fifteenth Amendments protect not state 
autonomy, but rather individual rights “against State 
denial or invasion.” Ex parte Virginia, 100 U.S. at 346.

Of course, Congress’s remedial authority under 
the Fourteenth and Fifteenth Amendments is “ not 
unlimited,” as it “extends only to enforcing the provisions 
of [those] Amendment^].” City of Boerne, 521 U.S. at 
518-19 (emphasis added) (internal quotation marks 
and alteration omitted). But when Congress oversteps 
the limits of that power, it does not, as Shelby County 
contends, violate any “guarantee” of the Fourteenth 
or Fifteenth Amendment. Instead, as always happens 
when Congress exceeds its enumerated authority and 
breaches the bounds of federalism, it violates the Tenth 
Amendment, which reserves to the states all “powers not 
delegated to the United States by the Constitution, nor 
prohibited by it to the States.” See, e.g., Printz v. United 
States, 521 U.S. 898, 919, 117 S. Ct. 2365, 138 L. Ed. 2d 
914 (1997); Neiv York v. United States, 505 U.S. 144,177, 
112 S. Ct. 2408,120 L. Ed. 2d 120 (1992). Indeed, as noted 
above, such was the basis for Shelby County’s original 
complaint in this very case, as well as for the Supreme 
Court’s decision in the County’s favor. Put in terms of the 
VRA’s fee-shifting provision, then, Shelby County brought 
this case to enforce the federalism “guarantees” of the 
Tenth Amendment, not the “voting guarantees” of the

Appendix A



37a

Fourteenth or Fifteenth Amendment. Shelby County is 
thus ineligible for attorneys’ fees.

Finally, I agree with Judge Silberman that Shelby 
County would have been eligible for fees had it prevailed 
in a suit brought on behalf of voters to vindicate their 
Fourteenth and Fifteenth Amendment rights to be free 
from discrimination in voting. But that is not the case the 
County filed.

Appendix A



38a

S ilberman , Senior Circuit Judge, concurring in 
the judgment: At oral argument, I asked counsel for 
the NAACP (originally the intervenor) the following 
hypothetical. Suppose a new Congress were to pass a 
version of the Voting Rights Act that was discriminatory 
to African-American voters. If you sued and prevailed on 
grounds that the new statute violated both the “right to 
vote” under the Fifteenth Amendment (which protects 
against interference by both the states and the United 
States), as well as the right to vote pursuant to the equal 
protection clause of the Fourteenth Amendment, see 
Reynolds v. Sims, 377 U.S. 533,84 S. Ct. 1362,12 L. Ed. 2d 
506 (1964), would you be entitled to attorney’s fees under 
the Voting Rights Act. The answer was unequivocally yes, 
and I think that is correct.

But that dialogue demonstrates two logical flaws in 
the court’s opinion. The first is that the attorney’s fees 
provision does not speak to suits to enforce the Voting 
Rights Act, similar to prior cases dealing with civil rights 
statutes, but “rather an action or proceeding to enforce 
the voting guarantees of the Fourteenth and Fifteenth 
Amendments.” In other words, a suit that challenges the 
constitutionality of a version of the Voting Rights Act can 
not be rejected merely because it challenges the Voting 
Rights Act. Therefore, much of the court’s discussion on 
this point is irrelevant.

The second logical flaw, similar to the first, which the 
district court and Judge Griffith’s opinion emphasize, is 
that it is allegedly inconceivable that any Congress would 
authorize attorney’s fees for an action challenging the

Appendix A



39a

legality of the very statute in which attorney’s fees are 
authorized. The problem is that the statute authorizing 
attorney’s fees was passed in 1975, whereas the recent 
statute challenged in this case was passed in 2006.1 So, 
whether attorney’s fees are allowed depends not on the 
view of the recent Congress, but rather on the words of 
the 1975 Congress.

I also disagree with the government that Shelby 
County could not have recovered fees because its lawsuit 
was inherently one on behalf of state autonomy. Actually, 
the original case could have been framed as one protecting 
the rights of individual voters in governed jurisdictions 
not to be discriminated against under the Fourteenth and 
Fifteenth Amendments. After all, the Section 5 procedure 
did limit the ability of voters to expeditiously change 
various voting practices and insofar as the formula for 
inclusion of covered jurisdictions was arbitrary, it was 
discriminatory. (Indeed, Section 2 of the Fourteenth 
Amendment actually speaks of preventing the right to 
vote of anyone being in any way “abridged.”1 2)

Nevertheless, I concur in the judgment in this case 
because I agree with Judge Tatel that the original suit 
was not brought on behalf of the individual voting rights

Appendix A

1. Section 14(e) was originally codified as 42 U.S.C. §19731(e), 
but was later recodified with the Voting Rights Act as a whole 
into Title 52.

2. Although a specific remedy is provided. It is not clear 
whether, and if so, how, it may be implemented by statute; in any 
event, it was not relied upon by Shelby County.



40a

of the citizens of Shelby County. Whether this goes to 
eligibility or entitlement — the concepts are interrelated in 
the court’s opinion — it is sufficient to conclude the action 
was not brought to enforce the voting guarantees of the 
Fourteenth or Fifteenth Amendment. It is simply not 
enough to rely, as does Shelby County, on their original 
argument that the statute was not “appropriate” within 
the meaning of those amendments, because its claim of 
inappropriateness — at least originally — was only based 
on precepts of federalism of the Tenth Amendment, not 
individual voting guarantees.

Appendix A



41a

APPENDIX B — MEMORANDUM OPINION OF 
THE UNITED STATES DISTRICT COURT FOR 

THE DISTRICT OF COLUMBIA, FILED 
MAY 28, 2014

UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 10-651 (JDB) 

SHELBY COUNTY, ALABAMA,

Plaintiff,

v.

ERIC H. HOLDER, Jr., in his official capacity 
as Attorney General of the United States,

Defendant,

EARL CUNNINGHAM, et al.,

Defendant-Intervenors.

May 28, 2014, Decided 
May 28, 2014, Filed

MEMORANDUM OPINION

Before the Court is [94] plaintiff Shelby County, 
Alabama’s (“ Shelby County”) motion for attorney’s fees. 
Shelby County seeks $2,000,000 in fees under 42 U.S.C. 
§ 1973/(e), a provision of the Voting Rights Act (“VRA”)



42a

that permits an award of reasonable attorney’s fees, in a 
district court’s discretion, to the prevailing party in “any 
action or proceeding to enforce the voting guarantees 
of the fourteenth or fifteenth amendment.” The United 
States and defendant-intervenors oppose the requested 
fee award. Both Shelby County’s fee petition and section 
1973£(e) present a series of interpretive challenges, for 
which there is often little or no binding precedent. But 
ultimately, for the reasons set forth below, the Court will 
deny Shelby County’s motion for attorney’s fees. Shelby 
County’s attorneys won an impressive victory before the 
U.S. Supreme Court. But as is true in most litigation, that 
victory came at a price. Shelby County and its attorneys, 
not the American taxpayer, must foot the bill.

BACKGROUND

Shelby County brought this action against the Attorney 
General as a facial challenge to the constitutionality of 
Section 4(b) and Section 5 of the Voting Rights Act of 
1965. Section 5 of the VRA “required States to obtain 
federal permission before enacting any law related to 
voting,” and Section 4(b) created a coverage formula that 
“applied that requirement only to some States.” Shelby 
Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2618, 186 L. Ed. 
2d 651 (2013). Shelby County alleged that Section 4(b)’s 
coverage formula and Section 5’s preclearance obligation 
for covered jurisdictions violated the principle of “equal 
sovereignty” embodied in the Tenth Amendment and 
Article IV of the United States Constitution, and that it 
exceeded Congress’s enforcement authority under the 
Fourteenth and Fifteenth Amendments. See Compl.

Appendix B



43a

[ECF No. 1] 1111 36-43. Shelby County included a request 
for “reasonable attorneys’ fees and costs” in the prayer 
for relief in its complaint. Id. II 44(c).

Defendant-intervenors— a group of voters from Shelby 
County, Alabama who believed in the constitutionality of 
the challenged provisions of the VRA— intervened on 
the side of the Attorney General. Together, both the 
Attorney General and defendant-intervenors pointed 
to “ the extensive 15,000-page legislative record that 
Congress amassed in support of its 2006 reauthorization 
of Section 5 and Section 4(b),” Shelby Cnty., Ala. v. Holder, 
811 F. Supp. 2d 424, 428 (D.D.C. 2011), as evidence that 
the challenged provisions remained “justified by current 
needs,” Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 
557 U.S. 193, 203, 129 S. Ct. 2504, 174 L. Ed. 2d 140 
(2009). After a review of the legislative record, extensive 
briefing, and oral argument, this Court agreed, holding 
that the challenged provisions “remain[ed] a congruent 
and proportional remedy to the 21st century problem 
of voting discrimination in covered jurisdictions,” and 
granted summary judgment in favor of the United States. 
Shelby County, 811 F. Supp. 2d at 428 (internal quotation 
marks omitted).

The Court of Appeals for the District of Columbia 
Circuit affirmed. Judge Tatel, writing for himself and 
Judge Griffith, acknowledged that “ [t]he legislative 
record is by no means unambiguous,” but ultimately held 
that “ Congress drew reasonable conclusions from the 
extensive evidence it gathered and acted pursuant to the 
Fourteenth and Fifteenth Amendments” in reauthorizing

Appendix B



44a

the challenged provisions. Shelby Cnty., Ala. v. Holder, 
679 F.3d 848, 884, 400 U.S. App. D.C. 367 (D.C. Cir. 
2012). Judge Williams dissented. Troubled by Section 
4(b)’s reliance on aging data, he concluded that Section 
4(b)’s coverage formula was “irrational” and, therefore, 
unconstitutional. Id. at 885 (Williams, J., dissenting).

The United States Supreme Court reversed. Chief 
Justice Roberts, writing for a five-justice majority, first 
acknowledged that “voting discrimination still exists; 
no one doubts that.” Shelby County, 133 S. Ct. at 2619. 
Nevertheless, the Chief Justice repeated the Supreme 
Court’s earlier admonition that the VRA “imposes current 
burdens and must be justified by current needs.’” Id. 
(quoting Northwest Austin, 557 U.S. at 203). Ultimately, 
the Court held that the Section 4(b) coverage formula— 
”an extraordinary departure from the traditional 
course of relations between the States and the Federal 
Government,” id. at 2631—was unconstitutional. Justice 
Ginsburg (joined by Justices Breyer, Sotomayor, and 
Kagan) dissented, claiming that the majority “err[ed] 
egregiously by overriding Congress’ decision.” Id. at 2652 
(Ginsburg, J., dissenting).

After the mandates issued from the courts above, 
this Court entered a final judgment in Shelby County’s 
favor on October 11, 2013. See Oct. 11, 2013 Order [ECF 
No. 92], Shelby County filed its motion for attorney’s fees 
two weeks later, within the timeline provided for by the 
Federal Rules. See Fed. R. Civ. R 54(d)(2)(B)(i). Shelby 
County asked for $2,000,000 in fees and $10,000 in costs. 
Shortly thereafter, the parties— acknowledging that

Appendix B



45a

Shelby County’s motion “appears to present a legal issue 
of first impression”— filed a joint motion to bifurcate the 
issues of fee entitlement (that is, whether Shelby County 
is entitled to any attorney’s fees) and fee amount (that 
is, assuming Shelby County is entitled to a fee award, 
what the proper size of that fee award is). Joint Mot. for 
Bifurcation [ECF No. 96]. This Court granted the motion, 
delaying resolution of the “ fee amount” question until after 
resolution of the “ fee entitlement” issue. See Nov. 5,2013 
Order [ECF No. 98]. The United States opposed Shelby 
County’s fee request, arguing (1) that sovereign immunity 
barred the claim, (2) that this was not the sort of “action 
or proceeding” in which the VRA authorized a fee award, 
and (3) that even if it were, Shelby County was not entitled 
to a fee award. Defendant-intervenors mostly agreed with 
the arguments advanced by the United States. After full 
briefing, the Court held a motions hearing on February 
14, 2014.

Appendix B

LEGAL STANDARD

The fee-shifting provision of the Voting Rights Act 
provides:

In 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. § 1973Z(e).



46a

Appendix B 

DISCUSSION

All agree that this fee petition presents several 
challenging legal questions, some of which are issues of 
first impression. After a careful review of the parties’ 
briefs, their presentations at oral argument, and the 
entire record in this case, and for the reasons discussed 
below, the Court holds that the United States waived its 
sovereign immunity in the Equal Access to Justice Act, 
but that Shelby County is not entitled to a fee award— 
even if this is the sort of “action or proceeding” in which 
the Court could award fees (a question the Court does not 
decide). Despite Shelby County’s creative efforts to show 
otherwise, its fee petition is too square a peg for section 
1973Z(e)’s round hole.

I. T he U nited States W aived Its S overeign Imm unity.

The first matter to be resolved is the issue of 
sovereign immunity, because “ ^jurisdiction must be 
established before a federal court may proceed to any 
other question,” Galvan v. Fed. Prison Indus., Inc., 199 
F.3d 461, 463, 339 U.S. App. D.C. 248 (D.C. Cir. 1999) 
(citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 
94-95,118 S. Ct. 1003,140 L. Ed. 2d 210 (1998)), and the 
issue of “ [sjovereign immunity is jurisdictional: a court’s 
jurisdiction to entertain a suit against the sovereign is 
circumscribed by the limits of the legislature’s waiver of 
sovereign immunity.” In re Al Fayed, 91 F. Supp. 2d 137, 
138 (D.D.C. 2000); accord United States v. Mitchell, 463 
U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983) 
(“ It is axiomatic that the United States may not be sued



47a

without its consent and that the existence of consent is a 
prerequisite for jurisdiction.”). Although this fee petition 
presents several novel and challenging questions of law, 
the question of sovereign immunity is not one of them: 
the United States plainly waived its sovereign immunity 
for attorney’s fees claims in section 2412(b) of the Equal 
Access to Justice Act.

A. Shelby County did not forfeit the argument 
that the United States has waived its sovereign 
immunity.

The United States takes the aggressive position that 
because “ Shelby County’s [opening] brief is completely 
silent on the essential question of the sovereign immunity,” 
Shelby County has forfeited any argument that the United 
States has waived sovereign immunity, which “by itself, is 
a fatal defect that must lead to denial of Shelby County’s 
fee petition.”1 Gov’t’s Opp’n to Pl.’s Mot. for Attorney’s 
Fees (“Gov’t’s Opp’n”) [ECF No. 103-1] at 5-6; see also id. 
at 5 (“ The United States should not be required to guess 
about the possible arguments Shelby County might have 
made but did not make.” ). In response, Shelby County 
points out that “sovereign immunity is a defense, and 
Shelby County is under no obligation to anticipate a 
defense and raise it on behalf of the United States.” Pl.’s 
Reply [ECF No. 104] at 14 n.5.

Appendix B

1. Of course, sovereign immunity would not bar a fee award 
against defendant-intervenors.



48a

Shelby County is correct. The D.C. Circuit has 
consistently (and intuitively) classified sovereign immunity 
as a “defense.” See, e.g., World Wide Minerals, Ltd. v. 
Republic of Kazakhstan, 296 F.3d 1154,1161 n.10,353 U.S. 
App. D.C. 147 (D.C. Cir. 2002) (analyzing “the defense of 
sovereign immunity”). A plaintiff seeking relief has no 
obligation to anticipate and negate a possible affirmative 
defense by the defendant. See, e.g., Flying Food Grp., Inc. 
v. NLRB, 471 F.3d 178,183, 374 U.S. App. D.C. 55 (D.C. 
Cir. 2006). That general principle applies to a sovereign 
immunity defense. Owens v. Republic o f Sudan, 412 
F. Supp. 2d 99, 104 (D.D.C. 2006) (“ Because sovereign 
immunity is in the nature of an affirmative defense, the 
plaintiff need not prove the absence of sovereign immunity 
in the first instance; rather, the defendant bears the burden 
of proving that the plaintiff’s allegations do not bring its 
case within a statutory exception to immunity.” ) (internal 
quotation marks and emphasis omitted), aff’d, 531 F.3d 
884, 382 U.S. App. D.C. 155 (D.C. Cir. 2008). Likewise, a 
party seeking attorney’s fees against the government has 
no obligation to address the issue of sovereign immunity 
unless and until the government raises it.

Here, the government raised a sovereign immunity 
defense in its opposition brief. Gov’t’s Opp’n at 5. Shelby 
County timely responded in its next filing. Pl.’s Reply 
at 12. Because Shelby County had no obligation to 
preemptively respond to a possible affirmative defense 
that the government might (or might not) choose to raise, 
Shelby County has not forfeited the argument that the 
United States waived sovereign immunity.2

Appendix B

2. When pressed at oral argument, counsel for the United 
States came close to— but ultimately stopped short of— conceding



49a

B. The United States waived its sovereign 
immunity from attorney’s fees claims in the 
Equal Access to Justice Act.

“ [T]he United States may not be sued without its 
consent,” Mitchell, 463 U.S. at 212, so, “ [ejxcept to the 
extent it has waived its immunity, the Government is 
immune from claims for attorney’s fees” under general 
principles of sovereign immunity.* 3 RucJcelshaus v. Sierra 
Club, 463 U.S. 680, 685,103 S. Ct. 3274, 77 L. Ed. 2d 938 
(1983). The Equal Access to Justice Act (“EAJA”) includes 
a generic waiver of sovereign immunity by the United 
States for attorney’s fees claims: sovereign immunity 
is waived wherever the United States would have been 
liable for fees at common law or under some other statute, 
but for the doctrine of sovereign immunity. The relevant 
provision reads:

Unless expressly prohibited by statute, a court 
may award reasonable fees and expenses of 
attorneys . . .  to the prevailing party in any civil 
action brought by or against the United States 
or any agency or any official of the United States 
acting in his or her official capacity in any court

this argument. See Feb. 14, 2014 Hr’g Tr. (“Hr’g Tr.”) [ECF No. 
106] at 30 (“[W]hile it was mentioned in the brief, we would not 
rest our hat on that point.”).

3. Because Shelby County sued the Attorney General of the 
United States in his official capacity, this case is treated as a suit 
against the United States for purposes of sovereign immunity. 
See Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 
87 L. Ed. 2d 114 (1985).

Appendix B



50a

having jurisdiction of such action. The United 
States shall be liable for such fees and expenses 
to the same extent that any other party would 
be liable under the common law or under the 
terms of any statute which specifically provides 
for such an award.

28 U.S.C. § 2412(b). This provision “ eliminated the 
absolute sovereign immunity bar to attorney fee awards 
against the government. . . . [T]he plain meaning of the 
EAJA is that an attorney fees award is not barred or 
made less likely simply because the offending party is 
the government.” Aero Corp. v. Dep’t of the Navy, 558 F. 
Supp. 404,419 (D.D.C. 1983); see also Unification Church 
v. INS, 762 F.2d 1077,1080, 246 U.S. App. D.C. 98 (D.C. 
Cir. 1985) (accepting the government’s argument that “ [t] 
he usual grant of sovereign immunity to the United States 
from fees awarded under a particular statute would . . .  
now be waived even in the absence of a particular provision 
in the fees statute to that effect” ).4

Appendix B

4. Section 2412(b) of the EAJA is used less often than its 
better known cousin, section 2412(d)(1)(A), which provides for a 
fee award to a party prevailing against the United States in most 
civil cases, with the important caveat that the United States can 
escape a fee award under that provision if it can show that its 
(losing) position was “substantially justified.” See Am. Hosp. Ass’n 
v. Sullivan, 938 F.2d 216, 219, 290 U.S. App. D.C. 397 (D.C. Cir. 
1991) (“ [The EAJA] waived the sovereign immunity of the United 
States against attorneys’ fees in two distinct manners. Most EAJA  
litigation arises under 28 U.S.C. § 2412(d)(1)(A), which provides 
for the award of fees against the United States in most types of 
civil litigation unless the court finds that the position of the United 
States was substantially justified----- There is, however, a lesser



51a

A quick read of the statute would seem to decide the 
waiver question in Shelby County’s favor, but the United 
States resists. To begin with, it concedes that “ Section 
2412(b) works a partial waiver of sovereign immunity 
through application to the United States of certain other 
federal fee-shifting statutes that allow fees to prevailing 
parties.” Gov’t’s Opp’n at 8. It then offers a two-part test, 
claiming that “ Section 2412(b) authorizes reasonable 
attorney’s fees against the United States under the terms 
of any statute that: (1) expressly permits suit against the 
United States for its violation of the statute, and (2) also 
provides for the award of attorney’s fees against the losing 
party without mentioning the United States.” Id. So both 
parties agree that sovereign immunity is waived by the 
EAJA when read in conjunction with generally applicable 
fee-shifting provisions in other statutes. And both agree 
that “Section 1973/(e) of the VRA constitutes a fee-shifting 
provision that does not expressly prohibit obtaining fees 
from the United States.” Id. at 9. Nonetheless, the United 
States insists that sovereign immunity still shields it from 
fee liability in this case, relying on the first prong of its 
proposed test. See id. (asserting that the EAJA waives 
sovereign immunity only for a statute that “expressly 
permits suit against the United States for its violation of 
the statute” ). None of the government’s arguments on this 
score are persuasive.

Appendix B

used waiver of sovereign immunity against attorneys’ fees in 28 
U.S.C. § 2412(b). That section makes ‘[t]he United States. . .  liable 
for [attorneys’] fees and expenses to the same extent that any other 
party would be liable under the common law or under the terms 
of any statute which specifically provides for such an award.’”).



52a

The United States claims that Shelby County’s lawsuit 
fails its proposed test for a waiver of sovereign immunity 
under section 2412(b) of the EAJA because there is no 
“merits liability in this case by the United States for 
violations of the voting guarantees of the constitution or 
the statutes that enforce them,” and, similarly, because 
“ fee liability runs with merits liability.” Id. at 9-10 (citing 
Graham, 473 U.S. at 168). Shelby County responds by 
pointing out, first, that the government cites no authority 
for its supposed requirement that the statute containing 
the secondary fee-shifting provision “expressly permits 
suit against the United States.” Pl.’s Reply at 13. Shelby 
County also argues that, even if there were such a 
requirement, it “ is of course met here— Section 19732(b) 
[of the VRA] expressly authorized this suit against the 
United States.” Id.

Again, Shelby County has the better of this argument. 
Shelby County cited 42 U.S.C. § 1973Z in its complaint 
as one of the bases for subject-matter jurisdiction in 
this Court. Compl. 11 4. And section 19731(b) provides 
for exclusive jurisdiction in the U.S. District Court for 
the District of Columbia for “any declaratory judgment” 
or "any restraining order or temporary or permanent 
injunction against the execution or enforcement of any 
provision” of the Voting Rights Act. Shelby County filed 
its suit pursuant to the terms of the Voting Rights Act, 
and it prevailed, so the government’s argument that the 
Voting Rights Act does not “permit[] suit against the 
United States,” Gov’t’s Opp’n at 9, and that there can be

Appendix B



53a

no merits liability for the United States, is disproved by 
this very lawsuit.5

Further support for this conclusion comes from the 
Supreme Court’s decision in Allen v. State Board of 
Elections, 393 U.S. 544,89 S. Ct. 817,22 L. Ed. 2d 1 (1969). 
There, the Supreme Court called section 1973((b) one of the 
Voting Rights Act’s “enforcement provisions,” even though 
this type of “ injunctive action is one aimed at prohibiting 
enforcement of the provisions of the Voting Rights Act, 
and would involve an attack on the constitutionality of 
the Act itself.” Id. at 558; see also Katzenbach v. Morgan, 
384 U.S. 641, 645, 86 S. Ct. 1717, 16 L. Ed. 2d 828 (1966) 
(noting that section 1973((b) provides exclusive jurisdiction 
in the U.S. District Court for the District of Columbia for 
such actions). For this reason, even if the Court accepted 
the government’s (unsupported) assertion that sovereign 
immunity is not waived under the EA JA without another 
statutory provision that “expressly permits” a lawsuit 
against the United States, there is such a provision here,

5. The government makes an unforced error in asserting that 
“the United States cannot be held substantively liable under [the] 
voting guarantees of the Fourteenth or Fifteenth Amendments 
themselves or under any of the statutes that enforce the voting 
guarantees” because they “regulate the conduct of voting by states 
(and localities like Shelby County), not the United States.” Gov’t’s 
Opp’n at 10-11. As Shelby County correctly responds, the text of 
“[t]he Fifteenth Amendment itself conclusively refutes the Gov­
ernment’s contention: ‘The right of citizens of the United States 
to vote shall not be denied or abridged by the United States or by 
any state . . . . ’” Pl.’s Reply at 3 (quoting U.S. Const, amend. XV). 
And section 1973Z(b) authorizes a declaratory judgment action 
against the Attorney General under the VRA.

Appendix B



54a

and Shelby County sued under it. Put another way, even 
though “fee liability runs with merits liability,” the United 
States lost this case on the merits. Hence, sovereign 
immunity is no bar to Shelby County’s motion.

II. F ee E ligibility: W as T his an “A ction or P roceeding to 
E nforce the V oting Guarantees of the F ourteenth 
or F ifteenth A mendment” ?

Section 1973£(e) gives a district court discretion to 
award attorney’s fees only in certain cases. Specifically, 
the district court’s “discretion” to award attorney’s 
fees to the “prevailing party”6 is limited to “any action 
or proceeding to enforce the voting guarantees of the 
fourteenth or fifteenth amendment.”7 42 U.S.C. § 19737(e). 
The problem is this. In any given “action or proceeding,” 
the plaintiff and the defendant may have vastly different 
goals— indeed, they are often diametrically opposed. 
For example, in a murder prosecution, the government 
is “enforcing” the legal prohibition on murder, but the 
criminal defendant is not. In a constitutional tort action, 
a victim of government abuse is “enforcing” individual 
rights protections in the Constitution or 42 U.S.C. § 1983, 
but the state-official defendant is not. Section 19737(e),

6. The United States concedes that Shelby County is the 
“prevailing party.”

7. Individual amendments to the United States Constitution 
are typically capitalized. See The Bluebook: A  Uniform System of 
Citation R. 8(c)(ii), at 85 (Columbia Law Review Ass’n et al. eds., 
19th ed. 2010). For whatever reason, in section 19737(e), they are 
not. In this opinion, the Court will (mostly) adopt the statute’s 
convention.

Appendix B



Appendix B

however, seemingly requires the Court to describe an 
“action or proceeding”— rather than a party— as either 
“ en forcing ] the voting guarantees” of the relevant 
amendments, or not.

There are three plausible ways to interpret this 
ambiguous statutory language: (1) a “plaintiff-specific” 
interpretation, which would ask whether the plaintiff 
filed the lawsuit “ to enforce the voting guarantees of the 
fourteenth or fifteenth amendment”; (2) a “party-specific” 
interpretation, which would ask whether the party seeking 
attorney’s fees was participating in the lawsuit “ to enforce 
the voting guarantees of the fourteenth or fifteenth 
amendment”; or (3) a “neutral” interpretation, in which 
the Court would assess whether, overall, the “action or 
proceeding” was “ to enforce the voting guarantees of 
the fourteenth or fifteenth amendment.” The Court will 
consider each of these three possibilities in turn.

A. The Plaintiff-Specific Interpretation

Conceptually, it is difficult to assess whether a 
particular “action or proceeding” was one “to enforce” 
the relevant amendments without thinking about who filed 
it. The character of a lawsuit, after all, is shaped most 
significantly by the plaintiffs complaint. Cf Metro. Life 
Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S. Ct. 1542, 95 L. 
Ed. 2d 55 (1987) ( “ It is long settled law that a cause of 
action arises under federal law only when the plaintiffs 
well-pleaded complaint raises issues of federal law.”). 
Recognizing this, the plaintiff-specific interpretation 
would call on a court to ask whether the plaintiff filed the



56a

lawsuit in order to “enforce the voting guarantees of the 
fourteenth or fifteenth amendment.” If so, the “action or 
proceeding” is the type envisioned by the statute, and the 
“prevailing party” is eligible for attorney’s fees (subject 
to the district court’s “discretion,” see infra Section III).

To illustrate: under the plaintiff-specific interpretation, 
Shelby County would not be eligible for attorney’s fees, 
because the plaintiff, Shelby County, did not file this 
lawsuit in an attempt “to enforce the voting guarantees of 
the fourteenth or fifteenth amendment.” Instead, it filed 
this lawsuit to enforce “ the Tenth Amendment and Article 
IV of the Constitution,” Compl. 11 39, and to vindicate 
federalism interests and the “ fundamental principle of 
equal sovereignty,” id. 11 43, among the states. Those 
were the bases for Shelby County’s arguments in this 
Court, before the D.C. Circuit, and ultimately before the 
Supreme Court.

To be sure, Shelby County has always argued that 
Section 5 and Section 4(b) of the V R A  “ exceeded ] 
Congress’s enforcement authority under the Fourteenth 
and Fifteenth Amendments.” Id. 1111 39, 43. So in support 
of its motion, Shelby County argues that these arguments 
show that its lawsuit was indeed designed to “enforce” 
those amendments. See Pl.’s Mot. at 6 (“ Shelby County 
enforced the ‘appropriate legislation’ limitation that the 
Fourteenth and Fifteenth Amendments include to ensure 
individual liberty and protect meaningful participation in 
the electoral process.” ); see also id. at 3 (“The ordinary 
meaning of ‘enforce’ is ‘to compel obedience to.’ That 
is precisely what Shelby County has done here: it has

Appendix B



57a

compelled the Government’s obedience to the outer 
limits of congressional enforcement authority under the 
Fourteenth and Fifteenth Amendments . . .  .”) (internal 
citation omitted).

A clever argument, but it misses the mark. The fee- 
shifting provision in the VRA requires that the “action 
or proceeding” be designed to enforce “ the voting 
guarantees of the fourteenth or fifteenth amendment,” 
not just “ the fourteenth or fifteenth amendment.” By 
using the phrase “voting guarantees,” Congress made 
clear that it was referring to the individual voting rights 
protections that appear explicitly in the Fifteenth 
Amendment, see U.S. Const, amend. XV (“ The right of 
citizens of the United States to vote shall not be denied or 
abridged by the United States or by any state on account 
of race, color, or previous condition of servitude.”), and 
implicitly in the Fourteenth Amendment, see U.S. Const, 
amend. XIV (Equal Protection Clause). By contrast, the 
limitations on Congress’s enforcement powers under those 
amendments—which is what Shelby County’s challenge 
to the V R A  rested on— are not individual “ voting 
guarantees”; they address the power of Congress. See 
U.S. Const, amend. XV (“The Congress shall have power 
to enforce this article by appropriate legislation.” ); U.S. 
Const, amend. XIV  (“ The Congress shall have power 
to enforce, by appropriate legislation, the provisions of 
this article.” ). For this reason, though Shelby County 
argues at length that its lawsuit was designed to “ensure 
individual liberty and protect meaningful participation in 
the electoral process,” Pl.’s Mot. at 6, its interpretation 
essentially reads the words “voting guarantees” out of 
the statute.

Appendix B



58a

Furthermore, Shelby County cites no case for the 
proposition that there is a generic constitutional right 
to “meaningful participation in the electoral process.” 
In fact, the “voting guarantees” of the Fourteenth and 
Fifteenth Amendments are targeted at a narrower, 
more specific set of individual voting rights— none of 
which Shelby County was seeking to enforce through its 
federalism-based, Tenth Amendment facial challenge 
to the VRA. Shelby County did not file this lawsuit to 
“enforce” the “voting guarantees” of the Fourteenth and 
Fifteenth Amendments; in fact, it restricted Congress’s 
ability to legislate protections for those guarantees.8

In any event, the plaintiff-specific interpretation has 
much to recommend it— most notably, its consistency with 
the statutory text and its relative administrability. But 
despite those advantages, it runs into one major hitch: 
three D.C. Circuit decisions implicitly reject this approach. 
Although none of these cases actually considered this 
precise issue, their logic makes it difficult for this Court 
to adopt the plaintiff-specific interpretation.

8. Shelby County cites heavily to Supreme Court opinions 
extolling the virtues of federalism and its connection to individual 
liberty. See, e.g., Pl.’s Mot. at 5 (quoting Bond v. United States, 
131 S. Ct. 2355, 2364, 180 L. Ed. 2d 269 (2011) (“[FJederalism 
secures to citizens the liberties that derive from the diffusion of 
sovereign power.”)). The Court has no quarrel with the proposition 
that federalism protects individual liberty. But even so, that does 
not mean that Shelby County’s federalism-based lawsuit was filed 
“to enforce” the “voting guarantees of the fourteenth or fifteenth 
amendment.” Once again, those “voting guarantees” refer to 
a narrower set of rights than the broad notions of “individual 
liberty” referenced in Shelby County’s brief.

Appendix B



59a

In 1980, “ the Commissioners of Medina County, Texas 
. . . instituted a declaratory judgment action against the 
United States pursuant to Section 5” of the VRA, seeking 
“a declaration that two redistricting plans . . .  which had 
failed to obtain preclearance from the Attorney General” 
were legal. Comm’rs Court of Medina Cnty., Tex. v. United 
States, 683 F.2d 435,437-38,221 U.S. App. D.C. 116 (D.C. 
Cir. 1982). Three “Mexican-American citizens residing 
and registered to vote in Medina County[] intervened as 
party defendants in the County’s suit against the United 
States.” Id. at 438. The United States and the defendant- 
intervenors prevailed in part when the County decided to 
abandon its plan, and the defendant-intervenors moved 
for fees. See id. The D.C. Circuit ultimately remanded for 
further analysis of the question of whether the defendant- 
intervenors were “prevailing parties.” But its analysis 
rests entirely on the assumption that had they truly 
“prevailed,” they would be entitled to attorney’s fees. See 
id. at 444.

Similarly, in Donnell v. United States, 682 F.2d 
240, 220 U.S. App. D.C. 405 (D.C. Cir. 1982), the D.C. 
Circuit cabined the discretion of a district court to award 
attorney’s fees to defendant-intervenors in a preclearance 
declaratory judgment action under Section 5 of the 
VRA. But in doing so, it held that prevailing defendant- 
intervenors can be awarded attorney’s fees, even in a 
VRA “action or proceeding” filed by a covered jurisdiction 
seeking to obtain preclearance for a plan opposed by the 
Attorney General. See, e.g., id. at 248-49 (“ [A]n intervenor 
should be awarded attorneys’ fees only if it contributed 
substantially to the success of the litigation.” ). Finally, in

Appendix B



60a

a third example, the D.C. Circuit reaffirmed Donnell and 
Medina County in 1996. See Castro County v. Crespin, 
101 F.3d 121,126, 322 U.S. App. D.C. 11 (D.C. Cir. 1996) 
(holding that “a party intervening as a defendant in a 
section 5 action may be a prevailing party,” and thus, may 
be entitled to attorney’s fees) (citing Medina County, 683 
F.2d at 439-40).

Although none of these opinions explicitly analyzed 
the issue of how to describe a particular “ action or 
proceeding” under section 1973Z(e), all three make clear 
that in the D.C. Circuit, defendant-intervenors may be 
entitled to attorney’s fees if they prevail in a lawsuit filed 
under Section 5 of the VRA, by a covered jurisdiction, 
against the Attorney General— that is, in a lawsuit that 
was not filed to vindicate individual voting rights. And 
because the fee-shifting provision of the VRA allows for 
attorney’s fees only in an “action or proceeding to enforce 
the voting guarantees of the fourteenth or fifteenth 
amendment,” logic dictates that each of those lawsuits 
must have been, in the eyes of the D.C. Circuit, an “action 
or proceeding to enforce the voting guarantees of the 
fourteenth or fifteenth amendment.” Were they not, no 
fees could have been awarded; under the “American Rule,” 
courts generally may not award attorney’s fees without 
some specific congressional authorization. See Alyeska 
Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240,247, 
95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975) (“ In the United 
States, the prevailing litigant is ordinarily not entitled to 
collect a reasonable attorneys’ fee from the loser.” ).

Appendix B



61a

Hence, a district court in the D.C. Circuit cannot 
adopt the plaintiff-specific interpretation, whatever 
its merits. None of the complaints in Medina County, 
Donnell, or Castro County were filed for the purpose 
of enforcing “the voting guarantees” of the Fourteenth 
or Fifteenth Amendments. Like this one, those cases 
were filed by those who sought to oppose enforcement 
of those individual voting rights protections, in favor of 
other interests, like federalism and local sovereignty— 
legitimate interests that are, importantly, beyond the 
scope of section 1973Z(e). Nevertheless, the D.C. Circuit 
was not troubled by the prospect of awarding fees to a 
prevailing party. So although the D.C. Circuit has never 
expressly rejected the plaintiff-specific approach, those 
holdings seriously undermine its viability.

B. The Party-Specific Interpretation

The next alternative is the “ p a rty -sp e c ific ” 
interpretation, in which a court would ask whether the 
party seeking attorney’s fees was participating in the 
“action or proceeding” in order “to enforce the voting 
guarantees” of the relevant amendments.9 Unlike the 
plaintiff-specific interpretation, this one is not foreclosed 
by D.C. Circuit case law, since all three of the D.C. Circuit 
cases on this issue involved a fee request from defendant- 
intervenors who were supporting the enforcement of 
individual voting rights. Of course, none of those cases 
actually discussed the issue, so they do not offer strong 
support for either conclusion.

Appendix B

9. For the same reasons discussed above with respect to 
the plaintiff-specific interpretation, Shelby County would not be 
eligible for fees under the party-specific interpretation.



62a

Although this interpretation may not be foreclosed 
by D.C. Circuit precedent, it has other problems. Most 
importantly, it is in strong tension with the text of the 
statute. Section 1973Z(e) calls for a determination about 
a particular “action or proceeding”— that is, whether 
the “action or proceeding” was “ to enforce the voting 
guarantees” of the relevant amendments— rather than 
a determination about the intent of the “ prevailing 
party.” As Shelby County puts it, the text of the statute 
calls for two distinct questions: (1) what type of “action 
or proceeding” was this, and (2) which party prevailed? 
The plaintiff-specific interpretation and the neutral 
interpretation (discussed below) are faithful to this feature 
of the statute (the plaintiff-specific interpretation, by 
analyzing the lawsuit at the moment of filing, is still about 
describing the “action or proceeding” ex ante, rather 
than asking who is the “prevailing party,” ex post). The 
party-specific interpretation is not: it asks for an ex post 
determination about one of the litigants, rather than an 
ex ante determination about the “action or proceeding.”

A hypothetical illustrates this flaw in the party-specific 
interpretation. Imagine that one vote had switched at the 
Supreme Court, and the challenged provisions of the VRA 
had been upheld. Then, as prevailing parties, defendant- 
intervenors would likely have sought attorney’s fees.10 They

Appendix B

10. Counsel for defendant-intervenors refused to make this 
concession at oral argument. See Hr’g Tr. at 45-46. The Court notes 
that similarly situated defendant-intervenors— represented by 
many of the same attorneys at the NAACP Legal Defense Fund, 
the ACLU, and the Lawyers Committee for Civil Rights as these 
defendant-intervenors are— indicated their intent to do so after



63a

would have been eligible for such fees under established 
D.C. Circuit precedent. See, e.g., Crespin, 101 F.3d at 126. 
And this Court presumably would have awarded fees, if 
it determined that defendant-intervenors “contributed 
substantially to the success of the litigation.” Donnell, 682 
F.2d at 248-249.11 By awarding fees, however, the Court 
would necessarily be deciding that this lawsuit was an 
“action or proceeding to enforce the voting guarantees of 
the fourteenth or fifteenth amendment”— otherwise, there 
would be no legal basis for the fee award. See Alyeska, 421 
U.S. at 247. Shelby County puts it sharply: if this lawsuit 
“ is an ‘action or proceeding’ under Section 1973Z(e) when 
the defendants or defendant-intervenors prevail, it also 
must be [such] an ‘action or proceeding’ when the plaintiff 
prevails.” Pl.’s Reply at 7 n.3. Describing an “action or 
proceeding” differently based on who prevailed after the 
fact does violence to the statutory text. Either the “action 
or proceeding” was “to enforce the voting guarantees” of 
the amendments, or it was not. That question cannot turn 
on which party is seeking attorney’s fees, determinable 
only after years of litigation. Thus, the party-specific 
interpretation does not hold up well under scrutiny. 11

Appendix B

prevailing in a previous challenge to the constitutionality of Section 
5 of the VRA. See Nw. Austin Mun. Util. Dist. No. 1 v. Mukasey, 
No. 06-1384, ECF No. 136 (D.D.C. June 13, 2008).

11. This standard is unique to prevailing defendant- 
intervenors in VRA litigation, and will be discussed in more detail 
below in the course of analyzing how Supreme Court and D.C. 
Circuit precedent cabin district court discretion to award fees 
under the statute. See infra Section III.



64a

C. The Neutral Interpretation

Finally, the neutral interpretation would permit a 
fee award to any prevailing party, as long as the lawsuit 
could be described as “an action or proceeding to enforce 
the voting guarantees of the fourteenth or fifteenth 
amendment”—without regard to who filed the case or who 
was seeking fees. This interpretation has much to offer.

Most importantly, it is faithful to the statutory text. As 
discussed above, section 1973Z(e) calls for a determination 
about the “action or proceeding,” not about a particular 
litigant. The neutral interpretation is congruent with 
that textual command, which is an advantage over the 
party-specific interpretation. When Congress wishes to 
favor particular litigants in an attorney’s fee provision, 
it knows how to do so: many statutes explicitly limit fee 
eligibility to certain favored litigants. See Pl.’s Mot. at 8 
n.3 (collecting examples). Section 1973Z(e) is written from 
a neutral perspective with respect to the “prevailing 
party,” so it should be treated that way. And the neutral 
interpretation is also consistent with circuit precedent. 
Unlike the plaintiff-specific interpretation, no D.C. Circuit 
cases foreclose it.

Further, the only other federal court to have 
interpreted the “action or proceeding” language adopted 
the neutral interpretation. In that case, plaintiffs 
had proposed a ballot initiative for which no Spanish 
translation would be provided to voters. In re Cnty. of 
Monterey Initiative Matter, 2007 U.S. Dist. LEXIS 39557, 
2007 W L 1455869 (N.D. Cal. May 17, 2007). The County

Appendix B



65a

of Monterey refused to put the initiative on the ballot, 
arguing that failing to include a version for Spanish- 
speakers would violate the County’s obligations under 
the VRA. 2007 U.S. Dist. LEXIS 39557, [WL] at *1. The 
plaintiffs prevailed when the court found that the VRA did 
not prevent it from putting the referendum on the ballot. 
2007 U.S. Dist. LEXIS 39557, [WL] at *2.

When the plaintiffs sought attorney’s fees under 
section 1973Z(e), the County resisted on the grounds 
“ that the Plaintiffs did not bring an action to enforce 
voting guarantees.” Id. The court rejected the County’s 
argument, and awarded fees to the proponent of the 
English-only ballot initiative. 2007 U.S. Dist. LEXIS 
39557, [WL] at *3. The court acknowledged that plaintiffs 
had not initially filed the suit with the VRA in mind and 
that, indeed, it was the County that first injected federal 
voting rights into the litigation. Id. Even so, the court 
held that “ [w]hen the County invoked the Voting Rights 
Act, the . . .  actions became actions to enforce the voting 
guarantees of the Fourteenth Amendment. Accordingly, 
as the prevailing parties, Plaintiffs are entitled to 
reasonable fees and costs.” Id.

In awarding fees to the proponents of the English- 
only ballot initiative, the County of Monterey court 
necessarily adopted the neutral interpretation, because 
the plaintiffs unquestionably had not been the ones 
“enforcing” individual voting rights. Indeed, voting rights 
were irrelevant to the litigation until the County used the 
VRA as a justification for its refusal to put the referendum 
on the ballot. So the only court to have considered the 
issue adopted the neutral interpretation.

Appendix B



66a

This is not to say that the neutral interpretation is 
perfect. One flaw is that it presents a difficult interpretive 
task: how should a court decide whether a particular “action 
or proceeding” was “to enforce the voting guarantees” of 
the relevant amendments without considering who filed 
the lawsuit and who is seeking attorney’s fees? The best 
answer, as suggested by County of Monterey, is to label 
any “action or proceeding” in which at least one of the 
litigants is seeking “to enforce the voting guarantees” of 
the relevant amendments as an “action or proceeding” that 
triggers fee eligibility for the prevailing party.12 See id. 
At that point, the court could move on to an assessment of 
fee entitlement. That approach solves the administrability 
problem and is still consistent with the neutrally-written 
statutory text.

Appendix B

*  *  *

As the above analysis demonstrates, interpreting 
the phrase “action or proceeding to enforce the voting 
guarantees of the fourteenth or fifteenth amendment” 
presents a host of difficulties— some due to inartful 
statutory drafting, some due to D.C. Circuit opinions 
that, with the benefit of hindsight, appear not to have 
grappled with the full logical implications of their holdings. 
But this interpretive puzzle can be left for another day. 
As discussed below, even if this is the sort of “action

12. Under this interpretation, Shelby County would be eli­
gible for fees as the “prevailing party” in an “action or proceed­
ing” in which the United States and defendant-intervenors were 
seeking “to enforce the voting guarantees of the fourteenth or 
fifteenth amendment.”



67a

or proceeding” in which Shelby County is eligible for 
attorney’s fees, the Court, in its discretion, holds that 
Shelby County is not entitled to attorney’s fees under the 
circumstances of this case.

III. F ee E ntitlement: Is Shelby County E ntitled To
A ttorney ’s F ees as a M atter of “D iscretion” ?

Even in the right sort of “action or proceeding,” no 
prevailing party is guaranteed a fee award under section 
1973i(e). Instead, “the court, in its discretion, may” award 
fees. 42 U.S.C. § 1973Z(e). The text appears to offer broad 
discretion to a district court to award attorney’s fees as 
it sees fit. But a long line of Supreme Court and D.C. 
Circuit precedent indicates that this discretion is far more 
limited. Specifically, those courts have examined the broad 
purposes of the relevant statute—frequently in the civil 
rights context— and concluded that Congress intended 
attorney’s fees to be awarded only in circumstances 
consistent with the statute’s purpose. Although this is a 
question of first impression, that line of cases strongly 
suggests that the demanding Christiansburg standard 
should apply in this case, under which Shelby County may 
recover fees only if its opponents’ position was “ frivolous, 
unreasonable, or without foundation.” Christiansburg 
Garment Co. v. EEOC, 434 U.S. 412, 421, 98 S. Ct. 694, 
54 L. Ed. 2d 648 (1978). Today, the Court so holds.

To reach this conclusion, the Court will begin by 
exploring the Supreme Court and the D.C. Circuit case 
law adopting purposive interpretations of discretionary, 
textually neutral fee-shifting provisions— particularly,

Appendix B



68a

those found in federal civil rights statutes. Next, following 
the lead of this precedent, the Court will consider the 
purpose of section 1973£(e), the fee-shifting provision in 
the Voting Rights Act. Then, with this statutory purpose in 
mind, the Court will select the appropriate legal standard 
to apply when exercising discretion in considering Shelby 
County’s fee petition. And finally, the Court will apply that 
standard to this case, and decide whether Shelby County 
is entitled to a discretionary award of attorney’s fees.

Ultimately, the Court finds that the purpose of 
section 1973((e) is to encourage private attorneys general 
to bring lawsuits vindicating individual voting rights. 
Shelby County does not fit that statutory paradigm, so 
it cannot recover attorney’s fees unless it meets a higher 
bar: the Christiansburg standard, under which it may 
recover fees only if it can show that the position taken by 
its opponents was frivolous or unreasonable. And because 
Shelby County cannot make that showing, it is not entitled 
to a discretionary award of attorney’s fees.

A. The Supreme Court and the D.C. Circuit have 
repeatedly used purposive considerations to 
cabin district court discretion in awarding 
attorney’s fees.

Although the text of section 1973/(e) “does not specify 
any limits upon the district courts’ discretion to allow 
or disallow fees, in a system of laws discretion is rarely 
without limits.” Indep. Fed’n of Flight Attendants v. Zipes, 
491 U.S. 754,758,109 S. Ct. 2732,105 L. Ed. 2d 639 (1989). 
The Supreme Court and the D.C. Circuit have cabined

Appendix B



69a

this discretion by considering “ the large objectives” 
of the relevant statute, id. at 759, and have endorsed 
“the practice of using ‘several nonexclusive factors’ in 
determining whether to award attorneys’ fees so long as 
the factors are faithful to the statutory purpose.” Eddy 
v. Colonial Life Ins. Co. of Am., 59 F.3d 201, 204, 313 
U.S. App. D.C. 205 (D.C. Cir. 1995) (quoting Fogerty v. 
Fantasy, Inc., 510 U.S. 517, 534 n.19,114 S. Ct. 1023,127 
L. Ed. 2d 455 (1994)). This is particularly common for 
statutes that protect individual civil rights, and the D.C. 
Circuit has used this approach in applying this very fee- 
shifting provision, section 1973Z(e) of the VRA. See Medina 
County, 683 F.2d at 435; Donnell, 682 F.3d at 240. This 
Court will follow suit.

The first example of the Supreme Court adding an 
interpretive gloss on statutory “discretion” to award 
attorney’s fees came in 1968 (before the 1975 enactment 
of the VRA ’s fee-shifting provision). In Newman v. 
Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S. Ct. 
964, 19 L. Ed. 2d 1263 (1968), the Court interpreted the 
fee-shifting provision of Title II of the Civil Rights Act 
of 1964, which provides that: “ In any action commenced 
pursuant to this subchapter, the court, in its discretion, 
may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee . . . .” Id. at 401 n.l 
(quoting 42 U.S.C. 2000a-3(b)). That provision is even more 
neutral, on its face, than the fee-shifting provision of the 
VRA. Nevertheless, finding that Congress intended “ to 
encourage individuals injured by racial discrimination 
to seek judicial relief,” the Supreme Court held that any 
prevailing plaintiff “should ordinarily recover attorney’s

Appendix B



70a

fees unless special circumstances would render such 
an award unjust.” Id. at 402. In doing so, the Supreme 
Court reduced district court discretion to deny attorney’s 
fees to prevailing plaintiffs who were victims of racial 
discrimination— even though the statute is written 
neutrally with respect to “the prevailing party.” See id. 
at 401-02. And it did so based on purposive considerations 
and a value judgment about the subjective intent of 
Congress.

The Supreme Court reaffirmed this approach in 
1973, with respect to an identically worded fee-shifting 
provision in the Emergency School Aid Act of 1972, under 
which plaintiffs had prevailed in “ litigation aimed at 
desegregating the public schools of Memphis, Tennessee.” 
Northcross v. Bd. ofEdue. o f the Memphis City Schs., 412 
U.S. 427, 427, 93 S. Ct. 2201, 37 L. Ed. 2d 48 (1973). The 
Court, in a step that it would repeat in later cases, noted 
that the “similarity of language” in the statute and the 
fee-shifting provision in the Civil Rights Act was “a strong 
indication that the two statutes should be interpreted 
pari passu.” Id. at 428. It then explained that “plaintiffs 
in school cases are ‘private attorneys general’ vindicating 
national policy in the same sense as are plaintiffs in Title 
II actions. The enactment of both provisions was for the 
same purpose— ’to encourage individuals injured by 
racial discrimination to seek judicial relief.’” Id. (quoting 
Biggie Park, 390 U.S. at 402). For this reason, it held 
that prevailing plaintiffs “ ’should ordinarily recover an 
attorney’s fee unless special circumstances would render 
such an award unjust.’” Id. (quoting Biggie Park, 390 U.S. 
at 402).

Appendix B



71a

In 1978, the Supreme Court, for the first time, 
had occasion to apply this methodology to a prevailing 
defendant in a civil rights case— that is, to a party that 
was opposing enforcement of the principles that the 
statute was designed to vindicate. In Christiansburg 
Garment Co. v. EEOC, an employer-defendant prevailed 
in a race discrimination suit under Title VII of the Civil 
Rights Act. 434 U.S. at 414. As “the prevailing party” in 
“an action or proceeding under” Title VII, the defendant 
sought attorney’s fees. Id. at 414-15.

In rejecting the defendant’s fee claim, the Supreme 
Court first described the set of statutes that had become 
subject to this purposive interpretive methodology:

Some of these statutes make fee awards 
mandatory for prevailing plaintiffs; others 
make awards permissive but limit them to 
certain parties, usually prevailing plaintiffs.
But many of the statutes are more flexible, 
authorizing the award of attorney’s fees to 
either plaintiffs or defendants, and entrusting 
the effectuation of the statutory policy to the 
discretion of the district courts. Section 706(k) 
of Title VII of the Civil Rights Act of 1964 falls 
into this last category, providing as it does that 
a district court may in its discretion allow an 
attorney’s fee to the prevailing party.

Appendix B

Id. at 415-16.



72a

Next, the Supreme Court proceeded to outline the 
process by which the district courts should carry out this 
“effectuation of the statutory policy” in interpreting a 
discretionary fee-shifting provision. Id. It acknowledged 
candidly that the text of the statute itself “provide[s] no 
indication whatever of the circumstances under which a 
plaintiff or a defendant should be entitled to attorney’s 
fees,” but then noted that “a moment’s reflection reveals 
that there are at least two strong equitable considerations 
counseling an attorney’s fee award to a prevailing Title VII 
plaintiff that are wholly absent in the case of a prevailing 
Title VII defendant.” Id. at 418. First, a Title VII “plaintiff 
is the chosen instrument of Congress to vindicate ‘a policy 
that Congress considered of the highest priority.’” Id. 
(quoting Biggie Park, 390 U.S. at 402). “ Second, when a 
district court awards counsel fees to a prevailing plaintiff, 
it is awarding them against a violator of federal law.” Id.

For these reasons, the Supreme Court insulated 
unsuccessful Title VII plaintiffs from most attorney’s fee 
claims, holding that “a district court may in its discretion 
award attorney’s fees to a prevailing defendant in a Title 
VII case” only if “ the plaintiff’s action was frivolous, 
unreasonable, or without foundation.” Id. at 421. The 
Court reasoned that if fees were too readily available to 
prevailing Title VII defendants, it “would substantially 
add to the risks inherent in most litigation and would 
undercut the efforts of Congress to promote the vigorous 
enforcement of the provisions of Title VII.” Id. at 422.

The Christiansburg interpretive approach was 
reaffirmed by the Supreme Court in the 1989 decision in

Appendix B



73a

Independent Federation of Flight Attendants v. Zipes, 491 
U.S. 754,109 S. Ct. 2732,105 L. Ed. 2d 639 (1989). In Zipes, 
Justice Scalia’s opinion for the Court opens with a strong 
endorsement of the general practice of purposive, judge- 
made tests to cabin district court discretion in awarding 
attorney’s fees under the federal civil rights laws:

Although the text of [Title V II’s fee-shifting] 
provision does not specify any limits upon the 
district courts’ discretion to allow or disallow 
fees, in a system of laws discretion is rarely 
without limits. In the case of [Title VII] and 
other federal fee-shifting statutes. . . ,  we have 
found limits in “ the large objectives” of the 
relevant Act, which embrace certain “equitable 
considerations.”

Id. at 758-59 (quoting Christiansburg, 434 U.S. at 418) 
(internal citations omitted).

Zipes involved a fee request against a “ losing 
defendant-intervenor in a Title VII case. Following the 
lead of Christiansburg, the Supreme Court examined 
the role of an intervenor in a Title VII suit, pointing 
out that “assessing fees against blameless intervenors 
. . .  is not essential to [the] purpose” of Title VII’s fee- 
shifting provision, which is “ to vindicate the national 
policy against wrongful discrimination by encouraging 
victims to make the wrongdoers pay at law assuring 
that the incentive to such suits will not be reduced by the 
prospect of attorney’s fees that consume the recovery. 
Id. at 761. Furthermore, “ losing intervenors . . .  have not

Appendix B



74a

been found to have violated anyone’s civil rights,” and “ [a] 
warding attorney’s fees against such an intervenor would 
further neither the general policy that wrongdoers make 
whole those whom they have injured nor Title V II ’s aim 
of deterring employers from engaging in discriminatory 
practices.” Id. at 762. Thus, the Court reasoned, a party 
seeking attorney’s fees against a Title VII defendant- 
intervenor must meet a high bar before obtaining a fee 
award; it must satisfy the Christiansburg standard, by 
demonstrating that “ the intervenors’ action was frivolous, 
unreasonable, or without foundation.” Id. at 761.13

In contrast to the purposive analysis it conducts when 
interpreting fee-shifting provisions in the civil rights 
laws, the Supreme Court has taken a slightly different

Appendix B

13. To be sure, in recent years some have criticized this 
approach as outdated and inappropriately based on atextual 
considerations. See, e.g., Fogerty, 510 U.S. at 538 (Thomas, J., 
concurring) (“The Court goes astray, in my view, by attempting 
to reconcile this case with Christiansburg. Rather, it should 
acknowledge that Christiansburg mistakenly cast aside the 
statutory language to give effect to equitable considerations.” ) 
(emphasis in original); Eddy, 59 F.3d at 212 (Randolph, J., 
dissenting) (“Instead of giving deference, it usurps the district 
court’s discretion. And instead of applying § 1132(g)(1) in a neutral 
fashion,. . .  it tilts decidedly in favor of the plaintiffs’ side of these 
controversies.”). But finding these criticisms only in concurring 
and dissenting opinions implies the continued legitimacy of the 
approach, as understood by majorities of both the Supreme Court 
and D.C. Circuit panels to have considered the issue. In addition, 
at least with respect to section 1973/(e) of the VRA, the explicit 
statutory grant of “discretion” to a district court in considering 
a fee petition offers a textual basis for this approach.



75a

approach when faced with fee-shifting provisions in purely 
economic statues. In Fogerty v. Fantasy, Inc., 510 U.S. 
517, 114 S. Ct. 1023, 127 L. Ed. 2d 455 (1994), the Court 
interpreted the fee-shifting provision in the Copyright 
Act. It ultimately held that all prevailing parties under 
the Copyright Act should be treated equally—but in doing 
so, relied on the differences between a purely economic 
statute like the Copyright Act and the civil rights statutes 
it normally subjects to a purposive value judgment. The 
Supreme Court explained that “ in the civil rights context, 
impecunious ‘private attorney general’ plaintiffs can ill 
afford to litigate their claims against defendants with more 
resources.” Id. at 524. And despite the textually neutral 
fee-shifting provision in the Civil Rights Act, it justified 
the Christiansburg decision as follows: “Congress sought 
to . . .  provide incentives for the bringing of meritorious 
lawsuits, by treating successful plaintiffs more favorably 
than successful defendants in terms of the award of 
attorney’s fees.” Id. Although the Supreme Court’s use 
of the words “plaintiff” and “defendant” in this context 
seems a bit imprecise, see, e.g., Zipes, 491 U.S. at 761 
(protecting defendant-intervenors from most fee requests 
based on the same purposive considerations), the Court 
reaffirmed its purposive methodology in interpreting 
textually neutral fee-shifting provisions in federal civil 
rights statutes.14

Appendix B

14. After oral argument on Shelby County’s motion, the 
Supreme Court decided another case interpreting a fee-shifting 
provision, this time in the Patent Act. It relied primarily on the 
plain text of the relevant fee-shifting provision to define the 
nature of an “exceptional” patent case in which fee-shifting was 
warranted. See Octane Fitness, LLC v. ICON Health & Fitness,



76a

The D.C. Circuit has followed the Supreme Court’s 
lead, and has used this purposive methodology on several 
occasions to interpret neutrally worded fee-shifting 
provisions— including the fee-shifting provision in the 
VRA. First, in Donnell, the D.C. Circuit crafted a standard 
to apply when a prevailing defendant-intervenor, who is 
seeking to enforce individual voting rights by opposing 
an allegedly discriminatory voting plan submitted by 
a covered jurisdiction, seeks attorney’s fees. The D.C. 
Circuit noted that “ the purpose of this provision,” that 
is, the fee-shifting provision of the VRA, section 1973Z(e), 
“ is the familiar one of encouraging private litigants to 
act as ‘private attorneys general’ in seeking to vindicate 
the civil rights laws.” Donnell, 682 F.2d at 245. The 
court then pointed out the unusual procedural posture, 
noting that “ [h]ad this been a successful suit by these 
intervenors as plaintiffs against the [covered jurisdiction],

Appendix B

Inc., 1B4 S. Ct. 1749,1755,188 L. Ed. 2d 816 (2014) (“Our analysis 
begins and ends with the text of § 285.”). Although Shelby 
County might read Octane Fitness as a rejection of purposive 
considerations when interpreting fee-shifting provisions, it can 
also be read consistently with the Supreme Court’s distinction 
between statutes— like the Patent Act and the Copyright 
Act— that merely reshuffle economic burdens and benefits, and 
statutes— like the Civil Rights Act and the Voting Rights Act—  
that protect individual civil rights. Octane Fitness, a brief and 
unanimous decision, contains no hint that the Supreme Court 
intended to overrule or modify cases like Christiansburg and 
Piggie Park sub silentio; indeed, both opinions are cited favorably. 
See Octane Fitness, 134 S. Ct. at 1758 (citing Christiansburg, 434 
U.S. at 419; Piggie Park, 390 U.S. at 402 n.4). Unless and until the 
Supreme Court or the D.C. Circuit suggests otherwise, this Court 
will continue to treat the Christiansburg line of cases as good law.



77a

then, their entitlement to attorneys’ fees would hardly 
be in doubt.” Id. This was because “ [t]he result of the 
litigation furthered the purpose of the Voting Rights Act.” 
Id. Ultimately, the D.C. Circuit concluded that Congress 
intended an award of fees to successful intervenors to be 
made “only if [the intervenor] contributed substantially 
to the success of the litigation,” id. at 248-49, reasoning 
that the Attorney General was already available in such 
cases to vindicate voting rights, and fearful that “private 
litigants [would] ride the back of the Justice Department 
to an easy award of attorneys’ fees.” Id. at 249. Although 
the particulars of the role of a prevailing defendant- 
intervenor are not critical to resolving this fee dispute 
(defendant-intervenors lost this case), the interpretive 
method employed by the D.C. Circuit is instructive: the 
Donnell decision rests on reading section 1973Z(e) with a 
heavy purposive gloss.

Medina County offers additional elaboration on how 
to apply the Supreme Court’s purposive methodology in 
interpreting fee-shifting statutes— specifically, section 
1973Z(e) of the VRA. There, the D.C. Circuit quoted 
approvingly a district court decision holding that “ ’the 
attorneys’ fees statute [in the VRA] is to be liberally 
construed to effectuate its purposes,” ’ and that “ ’the 
procedural posture of the case should not be dispositive.’” 
Medina County, 683 F.2d at 439 (quoting Baker v. City 
of Detroit, 504 F. Supp. 841, 850 (E.D. Mich. 1980)). In 
other words, a court should look beyond the simplistic 
labels of “plaintiff” and “defendant” in determining how 
freely to award attorney’s fees to a prevailing party. The
D.C. Circuit concluded: “ It is thus clear from the case

Appendix B



78a

law and the legislative history that when the procedural 
posture of a case places the party who seeks to vindicate 
rights guaranteed by the Constitution in the position 
of defendant, the restrictive Christiansburg Garment 
rule is not applicable,” id. at 440, when that party seeks 
attorney’s fees.

Finally, arguably going one step further than the 
Supreme Court has, the D.C. Circuit has employed this 
purposive approach even in economic statutes outside 
of the civil rights context. See, e.g., Eddy, 59 F.3d at 
204 (adopting a multi-factor balancing test constraining 
district court discretion in awarding attorney’s fees 
under ERISA, noting that “ [t]he Supreme Court recently 
validated the practice of using ‘several nonexclusive 
factors’ in determining whether to award attorneys’ 
fees so long as the factors are faithful to the statutory 
purpose.” (quoting Fogerty, 510 U.S. at 517 n.19)); 
Metropolitan Wash. Coal, for Clean Air v. District of 
Columbia, 639 F.2d 802,804,205 U.S. App. D.C. 280 (D.C. 
Cir. 1981) (noting that the key consideration in awarding 
fees under the Clean Air Act is “whether the suit was of 
the type that Congress intended to encourage when it 
enacted the citizen-suit provision”). These cases provide 
strong support for the use of this purposive methodology 
when interpreting the VRA in this Circuit, because the 
Supreme Court has shown greater caution in expanding 
this approach beyond the civil rights laws. See Fogerty, 
510 U.S. at 524 (contrasting purposive interpretation of 
fee-shifting provisions under civil rights statutes with 
neutral interpretation of fee-shifting provision under 
the Copyright Act); see also Octane Fitness, 134 S. Ct.

Appendix B



79a

at 1755-56 (employing a textually focused analysis of the 
fee-shifting provision in the Patent Act).

To summarize: “Christiansburg teaches that even 
a neutrally-worded fee statute does not necessarily 
have an identical application to every prevailing party. 
Rather, when the statute establishes a flexible standard, 
a consideration of policy and congressional intent must 
guide the determination of the circumstances under which 
a particular party, or class of parties (such as plaintiffs 
or defendants), is entitled to fees.” Dorn’s Transp., Inc. v. 
Teamsters Pension Trust Fund ofPhila. & Vicinity, 799 
F.2d 45, 49 (3d Cir. 1986). The Court will now apply the 
teachings of the Christiansburg line of cases to section 
1973Z(e).

B. The purpose of section 1973/(e) is to encourage 
private attorneys general to bring lawsuits 
vindicating individual voting rights.

To carry out the preferred approach of the Supreme 
Court and the D.C. Circuit in interpreting discretionary 
fee-shifting provisions in civil rights statutes, this Court 
must consider the purpose of the VRA’s fee-shifting 
provision, 42 U.S.C. § 1973Z(e). Unlike for the other 
questions in this case, the case law offers substantial 
guidance here. “The purpose of this provision . . .  is the 
familiar one of encouraging private litigants to act as 
‘private attorneys general’ in seeking to vindicate the civil 
rights laws.” Donnell, 682 F.2d at 245; accord King v. III. 
State Bd. of Elections, 410 F.3d 404, 412 (7th Cir. 2005) 
(“The purpose of § 1973i(e). . .  is to ensure effective access

Appendix B



80a

to the judicial process for persons with . .  . voting rights 
grievances” ) (internal quotation marks omitted); Francia 
v. White, 594 F.2d 778,781 n.l (10th Cir. 1979) (“All of these 
civil rights laws depend heavily upon private enforcement, 
and fee awards have proved an essential remedy if private 
citizens are to have a meaningful opportunity to vindicate 
the important Congressional policies which these laws 
contain.” ).

As confirmation of this common-sense understanding 
of the purpose of the provision, “ the legislative history of 
section[] 1973Z(e). . .  emphasizes over and over again the 
critical goal of enabling private citizens to serve as ‘private 
attorneys general’ in bringing suits to vindicate the civil 
rights laws.” Donnell, 682 F.2d at 246. The 1975 Senate 
Committee Report discussed the “private attorneys 
general” rationale at length, and called on the judiciary 
to adopt similar standards as had already been adopted 
with respect to the fee-shifting provisions in other civil 
rights laws:

[Section 1973Z(e)] allows a court, in its discretion, 
to award attorneys’ fees to a prevailing party 
in suits to enforce the voting guarantees of the 
Fourteenth and Fifteenth amendments, and 
statutes enacted under those amendments.
. . . Such a provision is appropriate in voting 
rights cases because there, as in employment 
and public accommodations cases, and other 
civil rights cases, Congress depends heavily 
on private citizens to enforce the fundamental 
rights involved. Fee awards are a necessary

Appendix B



81a

means of enabling private citizens to vindicate 
these federal rights. . . . [PJrivate attorneys 
general should not be deterred from bringing 
meritorious actions to vindicate the fundamental 
rights here involved by the prospect of having 
to pay their opponent’s counsel fees should they 
lose.

S. Rep. 94-295, at 40-41 (1975). This point is largely 
undisputed. See Pl.’s Reply at 18 n.7 (acknowledging that 
the Senate Report reflects “Congress’s acceptance of both 
the Piggie Park and Christiansburg Garment standards,” 
but maintaining that the Senate Report “does not indicate 
which standard should apply in this instance”).

C. Shelby County must satisfy the Christiansburg 
standard to obtain a fee award.

With the well-settled purpose of section 1973Z(e) in 
mind— that is, incentivizing private attorneys general to 
bring lawsuits vindicating individual voting rights—the 
Court now turns to the question of how Shelby County fits 
within that paradigm. Unfortunately for Shelby County, 
its lawsuit was about as far as possible from the lawsuit 
the drafters of section 1973((e) were hoping to incentivize. 
Accordingly, for the reasons discussed below, as a result 
of Shelby County’s failure to fit the statute’s preferred 
profile, the Court concludes that to obtain a fee award in 
this case, Shelby County will need to satisfy a higher bar: 
the Christiansburg standard.

Appendix B



82a

In most VRA lawsuits, an individual plaintiff, perhaps 
with the assistance of the Attorney General, is suing a 
state government entity for taking an action that violates 
the plaintiffs individual voting rights. These suits fall 
squarely within the wheelhouse of the VRA fee-shifting 
provision, so in such a case, a prevailing plaintiff “ ’should 
ordinarily recover an attorney’s fee unless special 
circumstances would render such an award unjust.’” 
Donnell, 682 F.2d at 245 (quoting Biggie Park, 390 U.S. 
at 402). Similarly, in such a typical case, “ [generally, a 
defendant may not recover attorneys’ fees unless the court 
finds that the plaintiff’s suit was frivolous, vexatious, or 
without foundation.” Medina County, 683 F.2d at 439 
(citing Christiansburg, 434 U.S. at 421-22).

But not all cases are “ typical,” and sometimes, the 
plaintiff/defendant lineup is more complex— or is wholly 
reversed. In the words of the D.C. Circuit in Medina 
County, it is “clear from the case law and the legislative 
history that when the procedural posture of a case places 
the party who seeks to vindicate rights guaranteed by the 
Constitution in the position of defendant, the restrictive 
Christiansburg Garment rule is not applicable.” Id. at 
440. By the same token, “when the procedural posture of a 
case places the party who seeks to” oppose enforcement of 
individual voting rights “ in the position of” a plaintiff, “ the 
restrictive Christiansburg Garment rule” is applicable, 
id., when that party seeks attorney’s fees. That, of course, 
is the situation here.15

Appendix B

15. To be precise, the Medina County language quoted above 
uses the phrase “rights guaranteed by the Constitution,” Medina 
County, 683 F.2d at 440, and Shelby County’s facial challenge



83a

In fact, section 1973/.(e)’s legislative history—relied 
upon heavily by the D.C. Circuit in Medina County— 
specifically addresses a scenario that is highly analogous 
to this litigation. After explaining that prevailing plaintiffs 
are typically entitled to attorney’s fees under the lenient 
Piggie Park standard— that is, they should recover fees 
“unless special circumstances would render such an award 
unjust,” 390 U.S. at 402— the report explains that this 
rule should be interpreted pragmatically by looking at the 
actual motivations of the plaintiff and the defendant in a 
particular case. “ In the large majority of cases the party 
or parties seeking to enforce [voting] rights will be the
plaintiffs___However, in the procedural posture of some
cases (e.g., a declaratory judgment suit under Sec. 5 of the 
[VRA]) the parties seeking to enforce such rights may 
be the defendants and/or defendant intervenors.” S. Rep. 
94-295, at 40 n.42 (1975) (quoted in Medina County, 683 
F.2d at 439-40). This passage provides powerful support 
for the conclusion that plaintiff/defendant labels are not 
dispositive: the key question is whether a party is seeking 
to enforce individual voting rights.

Appendix B

did, of course, rely on the Constitution. But context makes clear 
that the constitutional rights the D.C. Circuit was concerned 
about in Medina County are the individual “voting guarantees” 
of the Fourteenth and Fifteenth Amendments, rather than the 
federalism-based, Tenth Amendment interests vindicated by 
Shelby County in this case. See id. at 439-40 (quoting the Senate 
Report’s example of defendant-intervenors being the party 
“seeking to enforce” voting rights in a Section 5 declaratory 
judgment action brought by a covered jurisdiction). Importantly, 
and as discussed at length above, those constitutional interests 
while equally legitimate— are not mentioned in section 19731(e).



84a

Cases from outside the D.C. Circuit also provide 
support, relying on this legislative history. See, e.g., 
King, 410 F.3d at 413 (“ The legislative histor[y] of § 
1973/(e). . .  reflects] Congress’ expectation that, in some 
circumstances, defendants or defendant-intervenors 
would be prevailing parties entitled to attorneys’ fees.”); 
League o f United Latin-American Citizens Council No. 
U-U v. Clements, 923 F.2d 365, 368, 368 n.2 (5th Cir. 
1991) (en banc) (“Given the Supreme Court’s apparent 
rationale for applying different standards to plaintiffs 
and defendants, any such reclassification of a party’s role 
must hinge upon whether the parties in question acted as 
private attorneys general within the scope of the statutes
under which Congress provided fee entitlement___ For
example, in section 5 declaratory judgment actions under 
the [VRA], the parties positioned as ‘defendants’ may 
actually be the parties charging civil rights violations and 
seeking to assert their civil rights.” ).

Finally, Christiansburg itself offers support. The 
Supreme Court in Christiansburg drew a distinction 
between the classic Title V II plaintiff— the “chosen 
instrument of Congress to vindicate a ‘policy that Congress 
considered of the highest priority,” ’ Christiansburg, 434 
U.S. at 418 (quoting Piggie Park, 390 U.S. at 402)— and 
a prevailing Title V II defendant. It pointed out that 
“when a district court awards counsel fees to a prevailing 
plaintiff, it is awarding them against a violator of federal 
law.” Id. Despite Shelby County’s best efforts to argue the 
contrary, a fee award in this case would not run “against 
a violator of federal law” in the manner contemplated by 
Christiansburg. To be sure, the Constitution is “ federal

Appendix B



85a

law,” and Supreme Court held in this case that Congress 
exceeded its constitutional authority in passing the latest 
Voting Rights Act reauthorization. But Christiansburg’s 
reference to a “violator of federal law” is a reference to 
a violator of individual civil rights (in that case, Title 
VII)— not the passage of a federal statute through the 
normal legislative process. Counsel for Shelby County 
essentially conceded as much at oral argument. See Hr’g 
Tr. at 17-18 (“ [W]e are not saying the Attorney General 
was departing from the statutory framework. He was 
constrained by the statute to exercise preclearance. There 
is no question about that. . . That’s why we sued him in 
his official capacity.. . .  We’re not saying Mr. Holder was
a maverick___ ”). Put another way, “ in contrast to losing
Title VII defendants who are held presumptively liable 
for attorney’s fees, losing” parties like the United States 
and the defendant-intervenors in this case “have not been 
found to have violated anyone’s civil rights.” Zipes, 491 
U.S. at 762 (citing Christiansburg, 434 U.S. at 418).

Although Shelby County v. Holder was in many ways 
a unique case, it was not entirely unprecedented; as in 
other VRA cases, “the parties positioned as ‘defendants’” 
and defendant-intervenors were “actually. . .  the parties 
charging civil rights violations and seeking to assert their 
civil rights.” Clements, 923 F.2d at 368 n.2. And Shelby 
County, the plaintiff, was not acting as a “private attorney 
general” seeking to vindicate individual voting rights. 
Instead, Shelby County was essentially the opposite 
of the “chosen instrument of Congress to vindicate ‘a 
policy that Congress considered of the highest priority,” ’ 
Christiansburg, 434 U.S. at 418 (quoting Piggie Park, 390

Appendix B



86a

U.S. at 402)— its position was openly hostile to Congress’s 
policy choices, attacking them as unconstitutional.

True, those attacks were successful. But that does not 
mean that Congress would have wanted attorney’s fees to 
be easily available to someone bringing such a challenge.16 
And congressional intent governs here, even though, on 
the merits, the Supreme Court found that Congress had 
overreached in other, unrelated provisions of the statute. 
Shelby County pejoratively refers to such an inference 
about congressional preferences as impermissibly creating 
a “judge-made ranking of rights”— an approach it claims 
was outlawed by Justice Scalia’s opinion in Zipes. See Pl.’s 
Reply at 15 (quoting Zipes, 491 U.S. at 763 n.4). But Shelby 
County ignores the rest of Justice Scalia’s footnote, which 
ultimately (and candidly) acknowledges that “ [h]ere, as 
elsewhere, the judicial role is to reconcile competing rights 
that Congress has established and competing interests 
that it normally takes into account.” Zipes, 491 U.S. at 
763 n.4 (emphasis added). The Court has done so here and, 
accordingly, will hold Shelby County to the Christiansburg 
standard, under which the Court, “ in its discretion,” will

Appendix B

16. Counsel for Shelby County seems aware of this flaw in the 
argument. See Hr’g Tr. at 26 (acknowledging that Congress “might 
well have considered, look, yes, we pass laws; we usually don’t 
incentivize people to overturn laws we pass”). Shelby County’s 
response— that “a responsible Congress would say that these 
laws need to be tested under the amendments,” id.— is wishful 
thinking. Even if correct as a normative matter, it seems highly 
implausible, as a descriptive matter, that Congress would have 
wanted to incentivize lawsuits like this one with the prospect of 
a fee award.



87a

award fees only if Shelby County can demonstrate that 
the United States or defendant-intervenors took positions 
that were “ frivolous, unreasonable, or without foundation.” 
Christiansburg, 434 U.S. at 421.17

D. Shelby County cannot satisfy the Christiansburg 
standard.

To its credit, Shelby County does not argue that 
the United States (or defendant-intervenors) took a 
position in this case that was “ frivolous, unreasonable, 
or without foundation.” See Hr’g Tr. at 20 (“ I don’t think 
we claimed the government’s conduct met the standard of 
Christiansburg. That’s not our claim.”). That concession 
was appropriate: this Court, two judges on the D.C. 
Circuit, and four Justices of the U.S. Supreme Court 
agreed with the position advanced by the Attorney 
General, and the challenged provisions of the VRA had 
been upheld in previous decisions of the Supreme Court.

Appendix B

17. Shelby County’s final argument to avoid the application of 
Christiansburg is an attempt to show that there is an “exception” 
to the Christiansburg standard when the party seeking attorney’s 
fees “’has vindicated a constitutional right or benefitted a large 
number of people.’” Pl.’s Mot. at 9 (quoting Dorn’s, 799 F.2d at 
50 n.6). But neither the Supreme Court nor the D.C. Circuit has 
ever hinted at the existence of such an exception, and the primary 
support for it comes from a passing dictum in a footnote of a Third 
Circuit ERISA decision— a decision that not only applied the 
Christiansburg standard, see id. at 50, but, more importantly, 
predates the Supreme Court’s suggestion that civil rights fee- 
shifting provisions should be interpreted differently than those 
found in economic statutes like ERISA, see Fogerty, 510 U.S. at 
524.



88a

Hence, the Court will deny fees to Shelby County “ in its 
discretion,” 42 U.S.C. § 1973Z(e), for failure to satisfy the 
Christiansburg standard.

CONCLUSION

For the reasons set forth above, the Court will deny 
Shelby County’s motion for attorney’s fees. A  separate 
order accompanies this Memorandum Opinion.

ZsL________________________
JOHN D. BATES 
United States District Judge

Appendix B

Dated: May 28, 2014