Churchill Area School District v. Hoots Brief of Respondent in Opposition to a Writ of Certiorari

    No. 15-583

In the

(tfoiirt of tljE United States

SHELBY COUNTY, ALABAMA,

Petitioner,

v.

LORETTA E. LYNCH, IN HER OFFICIAL 
CAPACITY 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

REPLY BRIEF

T homas R. McCarthy 
Counsel of Record 

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

Attorneys for Petitioner
Date: January 13,2016
263576

C O U N S E L  PR ESS  

(800) 274-3321 •  (800) 359-6859

mailto:tom@consovoymccarthy.com


TABLE OF CONTENTS

TABLE OF CONTENTS................................................... i

TABLE OF CITED AUTHORITIES............................ ii

REPLY B R IE F...................................................................1

I. R espon den ts W ron gly  A ttem pt To 
Refram e The D.C. C ircuit’s Decision
As An Application Of Piggie Park........................ 2

II. R e sp o n d e n ts  Do N ot D eny T h at 
Misapplication Of Christiansburg Has 
Resulted In A Tortured Jurisprudence On
Fee Recovery In The Lower Courts.....................7

III. Nothing In The Opposition Undermines
The Conclusion That Shelby County Is 
Eligible For Fees.....................................................9

Page

CONCLUSION 12



II

TABLE OF CITED AUTHORITIES

Page
CASES

Allen v. State Board of Elections,
393 U.S. 544 (1969).....................................................4-5

Alyeska Pipeline Svc. Co. v. Wilderness Soc’y,
421 U.S. 240 (1975).........................................................3

Christiansburg Garment Co. v. EEOC,
434 U.S. 412 (1978)............................................ 1, 3, 7, 8

City of Riverside v. Rivera,
477 U.S. 561 (1986)......................................................... 3

Georgia v. Ashcroft,
539 U.S. 461 (2003)......................................................... 5

Herbert v. Lando,
441 U.S. 153 (1979)....................................................... 11

Kulkami v. Nyquist,
446 F. Supp. 1274 (N.D.N.Y. 1977).............................. 4

Lavin v. Husted,
764 F.3d 646 (6th Cir. 2014)...........................................4

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

Reno v. Bossier Parish Sch. Bd.,
528 U.S. 320 (2000).........................................................5



Cited Authorities

Page
N.W. Austin Mun. Utility Dist. No. One v.

Holder,
557 U.S. 193(2009)........................................................ 5

Shelby County v. Holder,
133 S. Ct. 2612(2013).............................................. 5,10

Shelly Oil Co. v. Phillips Petroleum Co.,
339 U.S. 667 (1950)........................................................ 5

Sup. Ct. ofVa. v.
Consumers Union of the United States, Inc.,
446 U.S. 719 (1980)........................................................ 6

Tex. State Teachers Ass’n v.
Garland Indep. Sch. Dist.,
489 U.S. 782 (1989)....................................................... 3

Texas v. Davis,
No. 15-522 (Oct. 22, 2015)........................................ 8, 9

Texas v. United States,
798 F.3d 1108 (D.C. Cir. 2015).................................. 8,9

Turner v. District of Columbia Board of 
Elections & Ethics,
354 F.3d 890 (D.C. Cir. 2004)......................................6

W. Va. Univ. Hosp., Inc. v. Casey,
499 U.S. 83 (1991)......................................................... 4



IV

Cited Authorities

STATUTES AND OTHER AUTHORITIES

U.S. Const, amend. 1 ......................................................... 11

U.S. Const, amend. X ....................................................... 11

U.S. Const, amend. X IV ..........................................passim

U.S. Const, amend. X V ............................................passim

42 U.S.C. § 19731 .................................................................5

52 U.S.C. § 10310(e).............................................................9

S. Ct. R. 10(c)...................................................................... 3

Page



1

REPLY BRIEF

It is well-settled that this Court has adopted a dual 
standard to the awarding of attorney’s fees to prevailing 
parties under federal civil rights statutes, that is, a 
standard that treats prevailing plaintiffs and prevailing 
defendants differently. When a plaintiff prevails in a civil 
rights action, that party “should ordinarily ... recover 
an attorney’s fee unless special circumstances would 
render such an award unjust.” Newman v. Piggie Park 
Eyiters., Inc., 390 U.S. 400, 402 (1968). In contrast, a 
prevailing defendant may only recover if “the plaintiff’s 
action was frivolous, unreasonable, or without foundation.” 
Christiansburg Garment Co. v. EEOC, 434 U.S. 412,421 
(1978). Here, there is no dispute that the Voting Rights Act 
awards fees to prevailing parties, that Shelby County is a 
prevailing plaintiff, and that no “special circumstances” 
exist that would render an award “unjust.”

The court below therefore was able to deny Shelby 
County’s fee application only by breaking sharply 
with precedent. For the first time, a court applied the 
Christiansburg prevailing-defendant rule to a prevailing 
plaintiff. Not only is that ruling indefensible, Respondents’ 
attempt to rehabilitate the opinion as a routine application 
of precedent highlights precisely why review is needed. 
Respondents understand that treating Piggie Park and 
Christiansburg as alternative tests that a court has 
license to choose between— based on judicial notions 
of whether Congress would have wanted this party to 
recover— is untenable.

Indeed, this case illustrates the broader confusion 
among the lower courts regarding Christiansburg. As the



2

district court put it, refashioning this narrow exception 
as an alternative test has led the D.C. Circuit to dispense 
altogether with the “ labels” plaintiff and defendant, and 
has produced a regime in which fee awards are granted 
or denied based upon “value judgment^].” Pet. App. 77a, 
70a. The Court should grant the Petition.

I. Respondents Wrongly Attempt To Reframe The
D.C. Circuit’s Decision As An Application Of Piggie
Park.

Respondents’ mainly argue that the decision below 
correctly applied Piggie Park. Brief in Opposition (“BIO”) 
10-12,15-22. That is incorrect. As Respondents concede, 
“a district court’s discretion to deny a fee award to a 
prevailing plaintiff is narrow,” BIO 8-9, because Piggie 
Park adopts a presumption that plaintiffs who prevail in 
suits under civil rights laws ‘“should ordinarily... recover 
an attorney’s fee unless special circumstances would 
render such an award unjust,” ’ BIO 8 (quoting Piggie 
Park, 390 U.S. at 402). Had the court applied Piggie Park, 
it could have denied fees only if “ special circumstances” 
would have rendered “such an award unjust.” Piggie Park, 
390 U.S. at 402. Because no party made that argument, 
application of the Piggie Park standard could have led to 
one result: award of fees to Shelby County.

The reason Respondents frame the decision below as 
applying Piggie Park, of course, is because admitting that 
it did not would require them to grapple with the ruling’s 
unprecedented application of the prevailing-defendant 
rule to a prevailing plaintiff. Petition (“Pet.” ) 23-24. Their 
unwillingness to defend the decision on its own terms is 
thus an admission that the lower court’s refusal to apply



3

the Piggie Park standard to a prevailing civil rights 
plaintiff is both novel and indefensible.

Viewed for what it is, the ruling below cannot be squalled 
with this Court’s precedent and thus warrants review. S. 
Ct. R. 10(c). Shelby County is a prevailing plaintiff and is 
entitled to the presumption of fee recoverability for that 
reason alone. Pet. 25. Moreover, the presumption typically 
does not apply to prevailing defendants in civil rights 
cases for two reasons. First, unlike plaintiffs, civil-rights 
defendants are not akin to a “private attorney general” 
and, second, “when a district court awards counsel fees 
to a prevailing plaintiff, it is awarding them against a 
violator of federal law.” Christiansburg 434 U.S. at 416, 
418. Even if the prevailing-defendant rule could ever apply 
to a prevailing plaintiff, then, it would not apply here.

This is a classic “private attorney general” suit. Pet. 
25. Piggie Park itself explains that a “private attorney 
general” is one who seeks judicial relief that will deliver 
a public benefit— either legally or for the practical benefit 
of a large number of people. 390 U.S. at 402. The Court 
has repeatedly made the point. See, e.g.,Alyeska Pipeline 
Svc. Co. v. Wilderness Soc’y, 421 U.S. 240, 245-46 (1975); 
Tex. State Teachers Ass’n v. Garland Indep. Sch. Disk, 
489 U.S. 782, 793 (1989); City of Riverside v. Rivera, 477 
U.S. 561, 575 (1986). Shelby County brought this action 
to “advance the public interest by invoking the injunctive 
powers of the federal courts,” Piggie Park, 390 U.S. at 
402, on behalf of itself and thousands of similarly situated 
jurisdictions and their millions of citizens. It sought to 
restore constitutional order and to regain for its citizens 
their fundamental right to run their elections subject 
to universal constitutional restraints. Succeeding in



4

declaring a law unconstitutional is an “invaluable public 
service.” Kulkarni v. Nyquist, 446 F. Supp. 1274,1277-78 
(N.D.N.Y. 1977); Lavin v. Husted, 764 F.3d 646, 651 (6th 
Cir. 2014).

It cannot seriously be disputed that this is a “private 
attorney general” suit. Respondents do not even try. They 
instead try a different tack. In their view, Shelby County’s 
suit did not advance a congressional purpose and Congress 
did not need Shelby County to vindicate the protections of 
the Fourteenth and Fifteenth Amendments. BIO 11. Even 
setting aside their misguided form of purposivism, Pet. 
22; see also W. Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 
83, 98 (1991), they are wrong on both counts. Testing the 
constitutionality of the preclearance regime was always 
a congressional purpose. Indeed, Congress expressly 
authorized this type of suit in Section 14(b) of the Voting 
Rights Act. Attorney General Nicholas Katzenbach 
testified in support of Section 14(b), emphasizing that its 
purpose was to spur a challenge to the statute. Pet. 29. 
There can be no doubt, then, that Congress expressly 
authorized this suit for the purpose of having the 
constitutionality of the preclearance obligation examined 
by the courts.

Respondents claim that Section 14(b) is just a venue 
provision that does not create a cause of action. BIO 15. 
As an initial matter, that Congress wanted these tests in 
one venue does not detract from the fact that Congress 
authorized this specific type of suit. More fundamentally, 
whether or not the provision creates a cause of action 
does not detract from Section 14(b)’s purpose of ensuring 
that the constitutionality of preclearance would be 
tested in court. Respondents’ reliance on Allen v. State



5

Board of Elections, 393 U.S. 544 (1969), is misplaced. 
Allen described the “ [Section] 14(b) injunctive action” as 
authorizing “actions ... aimed at prohibiting enforcement 
of the provisions of the Voting Rights Act, [including] an 
attack on the constitutionality of the Act itself.” Id. at 558.1

It is equally untenable to suggest that Congress did 
not need private litigants to enforce the Fourteenth and 
Fifteenth Amendments. The lower court suggested that 
Congress intended to sunset the preclearance regime 
at some point. But that ignores: (1) Congress’s rejection 
of the Court’s many attempts to save preclearance from 
being ruled unconstitutional, Reno v. Bossier Parish 
Sch. Bd., 528 U.S. 320 (2000); Georgia v. Ashcroft, 539 
U.S. 461 (2003); (2) Congress’s near-unanimous vote to 
reauthorize the preclearance regime, Shelby County v. 
Holder, 133 S. Ct. 2612, 2635 (2013); and (3) Congress’s 
refusal to heed the Court’s warning in Northwest Austin 
that Section 4(b)’s coverage formula was constitutionally 
problematic, 557 U.S. 193, 204 (2009). Coupled with 
the Attorney General’s aggressive enforcement of the

1. Respondents’ attempt to frame this suit as not having 
been brought under Section 14(b) also is wrong (as the district 
court found, Pet. App. 52a-53a) and makes no sense anyway. 
Shelby County cited 42 U.S.C. § 19731 (the former code citation 
for V R A  Section 14) in its Complaint as providing a basis for 
this action, and requested a declaration that Sections 4(b) and 
5 were unconstitutional and an injunction against their further 
enforcement— i.e., the precise relief available under Section 14(b). 
Pet. App. 52a, 56a. Respondents’ theory— that Shelby County 
brought this case “under” the Declaratory Judgment Act— is 
thus factually wrong. And it makes no sense because all that act 
provides is a remedy, not a cause of action. Shelly Oil Co. v. Phillips 
Petroleum Co., 339 U.S. 667 (1950).



6

preclearance regime— over those same warnings and in 
ways that served only to exacerbate these constitutional 
problems— the claim that the United States did not need 
a constitutional challenge to enforce the Fourteenth and 
Fifteenth Amendment has no basis.

As a consequence, Respondents are left to argue 
that the United States is not a violator of federal law in 
order to avoid application of Piggie Park. Respondents’ 
indignation aside, BIO 16, they cannot deny that the 
Attorney General was enforcing an unconstitutional law 
and because of this case can no longer do so. Moreover, 
Respondents’ contention that they could not be deemed a 
“violator of federal law” because the Attorney General was 
merely enforcing the law, BIO 16, is a non-starter. “The 
Supreme Court has acknowledged that fee awards against 
enforcement officials are run-of-the mill occurrences.” 
Turner v. District of Columbia Board o f Elections & 
Ethics, 354 F.3d 890,898 (D.C. Cir. 2004) (citing Sup. Ct. 
ofVa. v. Consumers Union of the United States, Inc., 446 
U.S. 719,739 (1980)). “ ‘Mere’ enforcers of unconstitutional 
laws may be held liable for attorneys’ fees.” Id.

Regardless, Respondents (while they may not have 
meant to) admit in their brief that they do not believe their 
own position. Respondents endorse Judge Silberman’s 
view that a successful suit like this one— but framed as 
protecting the rights of individual voters—would allow 
the plaintiff to recover its fees under Section 14(e). BIO 
21-22 (citing Pet. App. 37a, 39a-40a). But that would not 
be true if the Attorney General is not a violator of federal 
law. Respondents cannot have it both ways. Their position 
on this score highlights the need for review here.



7

II. Respondents Do Not Deny That Misapplication 
Of Christiansburg Has Resulted In A Tortured 
Jurisprudence On Fee Recovery In The Lower 
Courts.

Misapplication of Christiansburg has led the lower 
courts to dispense with this Court’s dual approach to fee 
recovery in favor of a free-wheeling approach whereby 
courts pick fee-recovery winners and losers based on their 
own personal preferences. Pet. 20. The district court’s 
decision, which reads Christiansburg as authorizing 
it to make fee-recovery determinations based upon its 
own “value judgment[s] about the subjective intent of 
Congress,” proves the point. App. 70a. This is no standard 
at all. And it breaks sharply with Piggie Park, which has 
long been understood to impose limits on district court 
discretion. Pet. App. 68a-69a. Respondents suggest that 
Shelby County improperly casts aspersions on the motives 
of the lower courts. BIO 13. But they miss the point. It 
is an indictment of Christiansburg that the lower courts 
read it as authorizing them to make fee awards based on 
their own “value judgments.”

Unmoored from the text of Section 14(e) and freed 
from this Court’s dual approach to fee recovery, the lower 
courts somewhat unsurprisingly have produced results 
that do not add up when viewed together. Pet. 15-17. For 
example, the court here viewed Shelby County’s lawsuit as 
unnecessary to patrol the bounds of Congress’s authority 
under the Fourteenth and Fifteenth Amendments. Pet. 
App. 18a. The same court, however, routinely approves 
fee awards to parties that intervene as defendants in 
support of the Attorney General, notwithstanding that 
she needs no assistance in representing the United States.



8

Pet. 17. Worse still, the D.C. Circuit recently authorized 
a seven-figure award of fees to parties that intervened in 
support of the Attorney General despite the fact that the 
defendant-intervenors were not even prevailing parties. 
Pet. 16-18 (discussing Texas v. United States, 798 F.3d 
1108 (D.C. Cir. 2015), cert, pending sub nom. Texas v. 
Davis, No. 15-522 (Oct. 22, 2015).

Respondents can offer no meaningful response, 
refusing to grapple with the inconsistent outcomes in the 
lower courts, which can be explained only as resulting 
from the “value judgments” of individual jurists. All 
they can say is that those decisions are not relevant here 
because Shelby County is not a defendant-intervenor. BIO 
14. But this is a dodge, and a poor one at that. The lower 
courts’ tortured jurisprudence on fee recovery is of central 
relevance; it is one of Shelby County’s primary rationales 
for granting certiorari.2

The real reason why Respondents do not defend the 
lower courts’ free-wheeling approach to fee determinations 
is because they can offer no legitimate defense. Given 
their view that Shelby County should not be awarded fees 
because its constitutional challenge to the preclearance 
regime was not necessary to enforce the bounds of the 
Fourteenth and Fifteenth Amendments, Respondents 
can hardly defend the necessity of providing fee awards 
to incentivize interest groups to intervene as defendants 
in support of the Attorney General in voting rights cases.

2. Respondents attempt another dodge; they contend that 
this Court itself has properly applied Christiansburg “ over 
the last several decades.” BIO 12. But that is no reason to deny 
certiorari, especially given the conflict between the decision below 
and Piggie Park, see supra pp. 2-3, and the lower courts’ tortured 
jurisprudence on fee recovery, see supra pp. 7-8.



9

Nor do Respondents attempt to defend the lower 
court’s decision to deny fees to Shelby County while 
awarding them to a losing defendant-intervenor in Texas 
v. United States. See Pet. 16. This, of course, is because 
there is no defense of an approach that makes winners of 
losers and losers of winners. Id. Respondents’ refusal to 
stand up for the decision below, much less reconcile the 
result here with Texas v. United States, only underscores 
the need for review. In fact, the Court may wish to grant 
not only the instant Petition but also the petition for 
certiorari in Texas] doing so would afford the Court the 
opportunity to provide comprehensive guidance to the 
lower courts on the proper framework for fee recovery in 
civil rights cases.

III. Nothing In The Opposition Undermines The 
Conclusion That Shelby County Is Eligible For 
Fees.

As previously explained, Pet. 31-34, Shelby County 
also is eligible to recover attorneys fees. See 52 U.S.C. 
§ 10310(e) (authorizing fees “ [i]n any action or proceeding 
to enforce the voting guarantees of the fourteenth or 
fifteenth amendment”). Shelby County is eligible because 
its lawsuit enforced the Fourteenth and Fifteenth 
Amendment’s voting guarantees that States and their 
citizens (1) would be free of discriminatory voting 
practices, and (2) would be free of “ inappropriate” federal 
regulation of its voting practices. Respondents can refute 
neither argument.

First, Respondents do not dispute that Shelby 
County’s lawsuit enforced the right of its citizens to be 
free of discriminatory voting practices. For good reason.



10

“ [T]he Section 5 procedure ... limit[ed] 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.” Pet. App. 39a 
(Silberman, J., concurring). That is the precise holding 
of Shelby County. 133 S. Ct. at 2631 (finding Section 5 
unconstitutional because it was “ irrational for Congress 
to distinguish between States in such a fundamental 
way based on 40-year-old data” and “irrational to base 
coverage on the use of voting tests 40 years ago”).

Respondents’ only response is that Shelby County 
forfeited this argument. BIO 20-21. But that is not true. 
Shelby County has consistently made this argument at 
every step of the litigation. See Reply Brief at 14-15, Shelby 
County v. Holder, 14-5138 (D.C. Cir.) (Doc. 1532544); see 
also Motion for Attorney’s Fees at 5-6, Shelby County v. 
Holder, 10-651 (D.D.C.) (Dkt. 94-1); Reply to Motion for 
Attorney’s Fees at 10-12, Shelby County v. Holder, 10- 
651 (D.D.C.) (Dkt. 104). Indeed, that Shelby County was 
suffering arbitrary and discriminatory treatment was 
the entire basis of its lawsuit. See, e.g., Petitioner’s Brief 
at 41, Shelby County v. Holder, 133 S. Ct. 2612 (2013) 
(No. 12-96) (“As voter turnout and registration rates now 
approach parity, there is no rational basis for Congress’ 
determination that election data from 1964, 1968, and 
19/2 identifies those jurisdictions likely to discriminate 
between 2007 and 2031.” (alteration omitted)).

Second, Respondents claim that Shelby County did 
not enforce the voting guarantees of the Fourteenth and 
Fifteenth Amendments to be free of “ inappropriate” 
regulation because the amendments merely udiminish[ed]



11

States’ authority” and did not “guarantee some new right 
to States.” BIO 20. But that is not a proper reading of 
the Fourteenth and Fifteenth Amendments. In order 
to eliminate voting discrimination, these amendments 
authorize the federal government to enact “appropriate” 
legislation. By implication, the amendments clearly grant 
States and local governments the right not to be subjected 
to ^appropriate legislation.3

That a constitutional provision or statute speaks 
in the negative does not mean that it is not endowing 
rights. The First Amendment acts as a prohibition on 
government power, see U.S. Const, amend I (“Congress 
shall make no law ... abridging the freedom of speech.”), 
but is universally understood to guarantee individuals 
with certain constitutional rights, see, e.g., Herbert v. 
Lando, 441 U.S. 153,159 (1979) (“ [T]he First Amendment 
guarantees ... freedom of speech and freedom of press.”). 
So too here. The Fourteenth and Fifteenth Amendments 
guaranteed that Shelby County would not be subjected to 
“ inappropriate” legislation. That is the guarantee Shelby 
County enforced.

3. Respondents also wrongly contend that Shelby County 
sought relief only under the Tenth Amendment. BIO 17-18. Shelby 
County has consistently argued that Sections 4(b) and 5 of the VR A 
violated the Fourteenth and Fifteenth Amendments’ requirement 
that enforcement legislation be “appropriate,” and the courts 
repeatedly recognized its argument as such. Pet. 34.



12

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: January 13,2016

mailto:tom@consovoymccarthy.com


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