Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 1 of 13

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1 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs CIVIL ACTION NO. 11-CA-360 v. OLG-JES-XR (Lead Case) STATE OF TEXAS, et al., Defendants PLAINTIFF MALC S REPLY TO DEFENDANTS RESPONSE TO PLAINTIFF S MOTION FOR ATTORNEYS FEES The Defendants, consistent with their strategy throughout this litigation, have taken a shotgun approach in opposing Plaintiff MALC s attorneys fees motion. Defendants grab every possible potential position and theory, hoping to see what sticks without concern whether the authority cited actually supports their contention. For example, Defendants assert that MALC cannot secure interim attorney s fees because the courts have further limited [interim fees] to cases involving unique circumstances specifically, where the plaintiff has achieved success on the merits of its claims at the liability stage, the lawsuit has been pending for several years, and there is a risk that the plaintiff will have to abandon the litigation for lack of funds. Defendants Response, p. 4 (Dkt 867). Yet, the authority cited by the Defendant, in instructing the lower court to award interim fees or to give reasons why interim fees would not be proper, explained that it was proper to make such an award based on the fact that the legislative history emphasizes that the awards of attorneys' fees pendente lite are especially important where a party had prevailed on an important matter in the course of litigation, even where he ultimately does not prevail on all issu[e]s. S.Rep. No.

2 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 2 of , 94th Cong., 2d Sess. 5, reprinted in [1976] U.S.Code Cong. & Admin.News 5908, , 94th Cong., 2d Sess. Carpenter v. Stephen F. Austin State University, 706 F. 2d 608, 633 (5 th Cir. 1983). While the court in Carpenter cited to a case in which the court had granted interim fees in a situation where the private attorneys had shown that the protracted litigation led to cash flow problems, the court in Carpenter noted that plaintiffs urge that interim attorneys' fees are appropriate in light of the fact that the language of this awards section parallels that of the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. 1988, whose legislative history emphasizes the importance of costs awards pendente lite in protracted civil rights litigation. Id. Nowhere in the opinion did the 5 th Circuit set as a condition of or a limit for an award of interim fees to a situation where the Plaintiffs law firm must first establish that economic disaster was imminent. Defendants also assert that MALC cannot be considered prevailing party for a number of additional reasons. The Defendants claim that because no final relief has yet been granted, a claim to prevailing party status is premature. Defendants Response, p. 2 (Dkt 867) Moreover, Defendants assert that whatever relief has been granted is based on Section 5 and therefore, the relief itself would be unconstitutional. Id. The Defendants also claim that MALC cannot claim prevailing party status because it lacks standing in the initial action. Defendants Response, p. 10 (Dkt 867). In addition, the Defendants assert that because MALC did not fully embrace the redistricting plan submitted by the State and the Latino Redistricting Task Force, it cannot claim to have prevailed. Defendants Response, p. 17 (Dkt 867). Finally, the Defendants argue that even if MALC is determined to have prevailed, the amount of fees claimed is exorbitant and should be substantially reduced. Defendants Response, p. 2 (Dkt 867). The Defendants accuse MALC of failing to distinguish between winning and

3 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 3 of 13 losing issues and that MALC failed on many of its legal theories and claims; that the hourly rates sought were not justified; seeks fees for work pursuant to Section 5 and cannot be constitutionally assessed against Texas; and because there are inconsistencies and errors in MALC s fee request. Defendants Response, p. 2 (Dkt 867). Plaintiff MALC will address these issues and show that the Defendants characterization of the issues, law and facts of this case regarding fees is misleading and wrong. ARGUMENT AND AUTHORITY A. Interim Fees Are Authorized Pursuant to 42 U.S.C. 1973l(e) and The Supreme Court has held that such awards of interim fees in civil rights cases are available before the litigation is final, and that fees can be awarded on an interim basis. Buckhannon Bd. & Care Home, Inc. v W. Va. Dep t of Health & Human Res., 532 U.S. 598, 791 ( Congress cannot have meant prevailing party status to depend entirely on the time of a request: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation. ); Hutchinson v. Patrick, 636 F.3d 1, 8 (5th Cir. 2011) ( The Supreme Court has made it transparently clear that an award under a federal fee-shifting statute may sometimes be appropriate prior to the entry of a final judgment. Such an award is proper, pendente lite, where a party has established his entitlement to some relief on the merits of his claims. Thus, prevailing party status is not restricted to a party who has secured a favorable final judgment. Hutchinson, 363 F.3d at 8 (internal citations and quotations omitted) (emphasis added). The district court s discretion to order interim attorney s fees serves to further the goal of ensuring effective access to the judicial process for those aggrieved of their civil rights. Allen v. La. State Bd. of Dentistry, 948 F.2d 946, 947 (5th Cir. 1991).

4 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 4 of 13 B. Plaintiff MALC Is A Prevailing Party In This Action The Supreme Court has determined that civil rights plaintiffs are prevailing parties if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit. Texas State Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 789, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989); Hanrahan v. Hampton, 446 U.S. 754, (1980). In other words, the plaintiff must be able to point to a resolution of the dispute which changes the legal relationship between [it] and the defendant. Texas State Teachers Assoc., 489 U.S. at 792; see also Buckhannon Bd. & Care Home, Inc. v W. Va. Dep t of Health & Human Res., 532 U.S. 598, 604 (2001) (recognizing that a party prevails and is entitled to attorney s fees when that party obtains a material alteration of the legal relationship of the parties ). The United State Supreme Court in Buckhannon Bd. & Care Home v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001) in rejecting the so called catalyst theory as a basis for recovery of attorney s fees and determined that to be a prevailing party a plaintiff must show that the material alteration in the legal relationship must have a necessary judicial imprimatur. The Fifth Circuit has determined that judicial imprimatur need not be a final judgment. Dearmore v. City of Garland, 519 F.3d 517, 526 (5 th Cir. 2008)( The fact that Dearmore never obtained a final judgment on the merits does not affect our ruling, as a final judgment is not required. ) Rather, the key question is whether the particular judicial determinations in the particular case, which led to the Plaintiffs securing the relief they sought, were merely technical or de minimus judicial pronouncements or whether such judicial decrees are substantial. Dearmore, 519 F.3d at 521( Although an enforceable judgment on the merits and a court-ordered consent decree have sufficient judicial imprimatur, these examples are not

5 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 5 of 13 exclusive. See Buckhannon, 532 U.S. at 605 (referencing the judgment on the merits and consent decree as mere examples ) ). Thus, although an enforceable judgment on the merits and a court-ordered consent decree have sufficient judicial imprimatur, these examples are not exclusive. Dearmore, 519 F. 3d at 521. Here the Defendants assert that because this Court s permanent injunction and interim plans were not final determinations on the merits of Plaintiff s claims and because they were based on Section 5, they cannot form the basis of a prevailing party determination. However, although the Court s permanent injunction regarding the 2011 plans was based on Section 5, there was never any appeal of that determination and in fact as this Court noted the Defendants acknowledge the appropriateness of the injunction: parties have agreed that the relief granted herein will be effective as a permanent injunction, subject to being lifted by order of the Court as appropriate. September 29, 2011 Order, p. 5 (Dkt. 380). With regard to the interim plans, the Defendant s assertions that the plans were solely based on Section 5 determinations is wrong. The Court s interim plans remedied many of the legal defects in both the plans enacted by the Texas Legislature and in the former maps that were required to be reapportioned following the Census. The Court s interim plans are the result of preliminary determinations regarding the merits of the [Plaintiffs ] Section 2 and constitutional claims and application of the not insubstantial standard for the Section 5 claims, as required by the Supreme Court s decision in Perry v. Perez. (Orders, Dkt. # 681 and #682) (emphasis added). As detailed in MALC s previous filings, the level of success was significant. For example, one of MALC s principal claim was the use of population deviations to further improper goals. As was alleged by Plaintiff MALC, population variances in Hidalgo

6 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 6 of 13 House districts were used in the challenged 2011 Texas House plan to impermissibly advantage the chances of Republican candidates. As this Court noted: Most problematic is that enacted HD 41 --the only district in Hidalgo County that has a realistic chance of electing a Republican -- is substantially underpopulated (by 4.41% from the ideal district size), but the rest of the districts in the county are substantially overpopulated (2.83%, on average). This apparently systematic overpopulation of Democrat districts and underpopulation of the one possible Republican district presents serious concerns under Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), aff d mem. sub nom. Cox v. Larios, 542 U.S. 947 (2004). Thus, the plaintiffs have a likelihood of success on the merits on their one-person, one-vote claims with respect to HD 41. Interim Plan Opinion, March 19, 2012, p. 4 (Dkt. # 690). More detailed examples are contained in MALC s Memorandum in Support of its Motion for Attorneys Fees. (Dkt ). Moreover, with the enactment of the 2013 plans, these changes have now become permanent. This Court s orders and including the orders on interim plans for the 2012 election cycle, materially alter the legal relationship of the parties and grant Plaintiff significant and substantial relief, even if a final judgment has not been rendered. Plaintiffs thus have prevailed on important issues in this litigation and are entitled to an award of interim attorney s fees. The Defendants also assert that MALC cannot be determined to be prevailing party because it opposed the plans submitted by the State and the Latino Redistricting Task Force, (compromise plan) which then formed the basis of the Court s interim plans. Defendants Response, pp (Dkt. 867). Yet, this is an oversimplification of MALC s position on the compromise plans submitted to this Court. The proper evaluation of whether and to what the degree MALC s claims were vindicated by this Court s orders, including the interim plans adopted for the 2012 election, is to compare the relief to the plans challenged by MALC, not to

7 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 7 of 13 putative plans submitted by MALC. See, Ramos v. Koebig, 638 F.2d 838, 845 (5 th Cir. 1981); Medina County Commissioners Court v. United States, 683 F. 2d 435, 441 (D. C. Cir. 1982)(District Court s determination of non-prevailing party based on opposition to final compromise plan reversed). Indeed the Supreme Court has been clear that one need not succeed all issues to achieve prevailing party status. Texas State Teachers Assoc., 489 U.S. at 792. Defendants assertion that MALC cannot be determined to have prevailed because MALC showed no injury to any of its members and thus lacks standing, itself lacks merit and credibility and has been previously overruled by this Court. In its pre-trial motion to dismiss, Defendant asked this Court to dismiss MALC as a Plaintiff, because the Defendant argued, it lacked organizational standing in that it could not show injury to its members. Defendants Motion to Dismiss, p. 10, (Dkt. 209, p. 16). The Motion and issues raised regarding MALC s standing were fully briefed by the parties, including a sur-reply brief filed by MALC. See Dkt On the eve of trial, this Court denied Defendant s motion. September 2, 2011, Order denying in part and granting in part, Defendants Motion to Dismiss, (Dkt. 285, p. 26). There has been no appeal, nor has there been a request for new trial on the issue. In addition, the challenged plan in fact did harm the individual members of MALC, not just as Latino voters but as Latino members of the Texas House of Representatives. For example, as this Court found regarding HD 41, HD117, HD 35, etc., violations of the Constitution and Section 2 were remedied by the Court s interim plan, thus directly affecting MALC members. Finally, in Balderas v. State of Texas, 2002 U.S. Dist. Lexis25471 (E. D. Texas, 2002) the district court MALC was determined to be prevailing party entitled to attorney s fees in a redistricting action challenging the 2001 redistricting Texas House plans.

8 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 8 of 13 be overruled. None of Defendants objections to MALC as prevailing party have any merit and should C. MALC s Fee Application Well Documented And Supported By The Record Defendants also assert that MALC s fee claim is exorbitant because it is excessive in hours claimed and seeks compensation at unsupportable rates. The record is to the contrary however. This case was intense and time compressed. The hours are substantial and the rates consistent with complicated specialized litigation. MALC does concede that in the motion a clerical error occurred and should be corrected. In an attempt to update an earlier motion for interim fees, counsel failed to remove the amount claimed by Ricardo Cedillo in the earlier motion. This error was unintentional and the amount claimed in the motion should be reduced by $87, The rates claimed are consistent with the current market in the Western District of Texas. The Defendants argue that the rates requested by MALC are higher than those normally charged in the Western District for similar work by similarly experienced lawyers. Defendants Response, pp , (Dkt. 867). In support of its positions the Defendants point to the previous motion filed by Plaintiff more than a year ago, in which Jose Garza sought $450 per hour for his time in this case, rely on general surveys of average rates, on a declaration by Richard Gray in another case, and on a declaration and report by Judge Scott Brister. Yet, as Defendants acknowledge, the prevailing market rate is the rate charged for similar services by lawyers of reasonable comparable skill, experience, and reputation. Blum v. Stenson, 465 U. S. 886, 895 n.11 (1984). None of Defendants supporting evidence addresses these terms in determining the appropriate rate.

9 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 9 of 13 For example Defendants expert on fees, Judge Brister makes no assessment of rates for similar services by lawyers of reasonable comparable skill, experience, and reputation but rather bases his opinion on recent awards in other cases, a recent survey by Texas Lawyer, and his own experience and thus concludes that a rate ranging from $200 to $350 per hour would be appropriate for small firms like those involved in this case. Defendants Response, Exhibit A, p. 2 (Dkt ) Yet, Judge Brister, when tasked with determining an appropriate hourly rate for an attorney in a voting rights case with 18 years of experience testified that $750 per hour would be appropriate and that for an attorney with 11 years of experience $550 per hour would be appropriate etc. See LULAC V. City of Boerne, Civ. Action # 96-cv-808, Dkt and Dkt (Affidavits of Reagan Simpson and Scott A. Brister.) In contrast, MALC s lead counsel has over 35 years of experience, almost exclusively in voting rights, has argued twice before the United States Supreme Court and dozens of times before the United States Appellate Courts, including the Fifth Circuit, the D.C. Circuit, the Ninth Circuit, and the Tenth Circuit. Perhaps more importantly, MALC presented the expert opinion of Patrick Huffstickler, a shareholder with Cox Smith and Mathews who testified that in similarly complex federal litigation involving lawyers of similar skill and expertise a rate of $550 per hour was the Western District prevailing market rate for Jose Garza. While it is true that Mr. Garza requested compensation at $450 per hour more than a year ago, he only recently became aware of Judge Brister s testimony in the Boerne case and only recently consulted with Mr. Huffstickler. With regard to the to the increased in Mr. Avila s rate, although he informed MALC of the change he was unable to submit a changed declaration because he has suffered a severe stroke and is paralyzed to a substantial degree. All of the other rates of MALC counsel remained the same.

10 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 10 of 13 The rates MALC has requested are supported by the record of this case, including the testimony of Defendants expert and any award of attorneys fees should be based on those rates requested. 2. The hours requested are supported by the record in this case. The Defendants also make general attacks on the hours claimed to have been devoted to this cause by the counsel for MALC. The principal charge is that this Court should discount all time reported in a block format. That is where time is reported for multiple tasks in any given daily entry. Yet, the case most relied upon by the Defendants to support its request simply does not stand for the proposition that all time should be reduced for block entries. Fabela v. City of Farmers Branch 2013 U.S. Dist. Lexis (N. D. Texas, 2013). While block billing is disfavored, the inquiry the court should make relates to whether the Court can discern whether the time and tasks associated are reasonable. Id. As the Fifth Circuit has explained in litigants take their chances by submitting fee applications that are too vague to permit the district court to determine whether the hours claimed were reasonably spent. LULAC v. Roscoe I.S.D. 119 F. 3d 1228, 1233 (5 th Cir. 1997). However, the Court in Roscoe cautioned district courts that: On the other hand,... we are mindful that practical considerations of the daily practice of law in this day and age preclude "writing a book" to describe in excruciating detail the professional services rendered for each hour or fraction of an hour. We also recognize that, in this era of computerized timekeeping, many data processing programs limit the amount of input for any given hourly or daily entry. (citation omitted.) Roscoe I.S.D. 119 F. 3d at 1233 In Roscoe the 5 th Circuit in fact determined that: The hourly records submitted by LULAC attorneys in this case were not so vague or unilluminating that they precluded

11 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 11 of 13 meaningful review of whether particular hours were reasonably expended on this litigation or whether the hours spent were excessive or duplicative. Each attorney submitted records containing the date, the number of hours spent (calculated to a tenth of an hour), and a short but thorough description of the services rendered. Id. That is precisely the type of time entry submitted to this Court by counsel for MALC. Defendants also assert that the Court should exclude time spent on outside efforts. Yet, the Defendants objections again are general. For instance, the Defendants do not explain why it would be inappropriate to include time spend defending MALC s interests in this case but being affected by the proceedings in the Austin Division, in a case filed by the Rodriguez plaintiffs and in which MALC and other counsel in were directed to participate. As explained in some detail in MALC s motion and memorandum in support of attorneys fees, activity before the District Court in the District of Columbia and the Eastern District were critical in preserving the interests of MALC in this case. Defendants general attack on MALC s fee request as duplicative is insufficient to determine its validity. Moreover, MALC s attorneys Jose Garza and Martin Golando both reduced the time devoted to the case by 20% to account for any duplication and Ricardo Cedillo voluntarily no billed numerous time entries. The fact of the matter is that this case was extremely compressed and complex. There is no doubt that the time devoted to the case was substantial. However preparing a case for trial in a very compressed time frame required the use of multiple counsel to insure an adequate presentation to the Court. In addition, preparing the case for argument to the Supreme Court in a compressed and expedited schedule required intensive preparation. The time devoted to this case is reasonable and necessary to its presentation.

12 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 12 of 13 Finally, Defendants assertion that MALC failed in its goals in this case has been sufficiently addressed above and in prior pleadings. Ultimately, however, it was the State that failed in their efforts to implement plans that were created with the knowledge that significant racial gerrymanders were used to minimize the electoral effectiveness of minority voters in Texas. The costs associated with this litigation and requested here, including expert witness fees were necessary to the presentation of this cause and have been sufficiently justified in prior pleadings. CONCLUSION Plaintiff has presented a substantial but realistic request for fees in costs associated with the necessary presentation of this case to this Court. The Defendants have submitted objections that are not supported by the authority they have offered nor by the evidence they have submitted. Therefore, Plaintiff MALC respectfully requests that this Court grant MALC s Motion for interim attorney s fees. DATED: August 29, 2013 Respectfully submitted, /s/ Jose Garza JOSE GARZA Texas Bar No Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, Texas (210) garzpalm@aol.com JOAQUIN G. AVILA LAW OFFICE P.O. Box Seattle, Washington Texas State Bar # (206) (206) (fax) jgavotingrights@gmail.com

13 Case 5:11-cv OLG-JES-XR Document 882 Filed 08/29/13 Page 13 of 13 Ricardo G. Cedillo State Bar No Mark W. Kiehne State Bar No DAVIS, CEDILLO & MENDOZA, INC. McCombs Plaza, Suite E. Mulberry Avenue San Antonio, Texas Tel.: (210) Fax: (210) ATTORNEYS FOR MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REP. (MALC) CERTIFICATE OF SERVICE I hereby certify that on August 29, 2013 I electronically served the foregoing via ECF on all other parties in this litigation. /s/ Jose Garza