UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. Defendants/Appellants.

Transcription

1 Appellate Case: Document: Date Filed: 03/19/2012 Page: 1 CELIA VALDEZ, et al., UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Plaintiffs/Appellees, v. Case No DIANNA J. DURAN, et al., Defendants/Appellants. APPELLANT HSD S RESPONSE TO APPELLEES MOTION FOR AN ORDER AWARDING APPELLATE ATTORNEYS FEES, EXPENSES AND COSTS AND REMANDING TO THE DISTRICT COURT FOR DETERMINATION COMES NOW Appellants/Defendants Sidonie Squier, Ted Roth, and Julie Weinberg of the New Mexico Human Services Department ( HSD ) and respectfully submits its Response to Appellees Motion for An Order Awarding Appellate Attorneys Fees, Expenses, and Costs and Remanding to the District Court For Determination ( Motion ). Summary Plaintiff/Appellee Shawna Allers request for appeal-related attorneys fees expenses, and costs pursuant to the fee shifting provision of the NVRA and the settlement agreements between the parties should be denied. Ms. Allers has not articulated any argument as to why this Court should exercise its discretion to 1

2 Appellate Case: Document: Date Filed: 03/19/2012 Page: 2 award appeal-related fees and expenses under the circumstances in this case. Rather, Ms. Allers argument implies that appeal-related attorneys fees and expenses are automatic. However, such an award on appeal is not automatic. This Court has wide discretion in awarding appeal-related fees and expenses, even to a prevailing party under a fee-shifting provision such as Section 1973gg-9(c) of the NVRA. The agreement between the parties resolving the fees, expenses and costs below reserved the ability of Ms. Allers to seek an award of fees and expenses on appeal, and thus did not grant an automatic award of fees and expenses. The Court should exercise its discretion and not award attorneys fees, expenses, and costs to Ms. Allers because the key issue presented in the appeal, the interpretation of Section 1973gg-5(a)(6) of the NVRA, was a matter of first impression; Ms. Allers consented to the filing of the appeal; during the pendency of the appeal, HSD implemented certain agreed upon procedures that were in full compliance with the district court s summary judgment ruling, affirmed by this Court; and as part of the parties settlement agreement regarding fees, HSD agreed to and paid fees, expenses, and costs in the amount of $375,000 and did not contest the payment of such fees in this Court. Finally, Ms. Allers request for statutory costs should also be denied because she failed to file an itemized and verified bill of costs within 14 days after the entry 2

3 Appellate Case: Document: Date Filed: 03/19/2012 Page: 3 of judgment as required by Rule 39(d) of the Federal Rules of Appellate Procedure. Argument This Court has discretion in awarding appeal-related attorneys fees. Flitton v. Primary Residential Mortgage, 614 F.3d 1173, 1179 (10 th Cir. 2010). Thus, in order for a prevailing party to obtain appeal-related fees, an application for [such] fees must first be made to [the appellate] court. Id. (quoting Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993) (first alteration in original). If the Court decides that it is appropriate to award appeal-related attorneys fees, it may remand to the district court to determine a reasonable fee award. Hoyt, 11 F.3d at 985; I. Appeal-Related Attorneys Fees, Expenses, and Costs Are Not Automatic and Should Not Be Awarded Under the Circumstances In This Appeal. Plaintiff-Appellee, Shawna Allers claims that she is entitled to appellate level attorneys fees and expenses based on the NVRA fee-shifting provision, 42 U.S.C. Section 1973gg-9(c), which provides that [i]n a civil action under this section, the court may allow the prevailing party (other than the United States) reasonable attorney fees, including litigation expenses and costs. (emphasis added). The fee shifting provision of the NVRA, however, does not make an award of appellate related attorneys fees automatic. A prevailing party is not 3

4 Appellate Case: Document: Date Filed: 03/19/2012 Page: 4 automatically entitled to an award of appeal-related attorneys fees. Hoyt, 11 F.3d at 985. Even when a fee-shifting provision requires an award of attorneys fees to a prevailing party, this Court has exercised its discretion on whether to award appeal-related attorneys fees. See Int l Ass n of Fire Fighters, Local 2203 v. West Adams County Fire Prot. Dist, 877 F.2d 814, 821 (10th Cir. 1989). In International Ass n of Fire Fighters, Local 2203, this Court denied the plaintiff/appellee s request for appeal-related fees under the Fair Labor Standards Act (FLSA), even thought the plaintiff/appellee was a prevailing party. The FLSA provides that a court shall award a prevailing plaintiff attorney s fees and costs. International Ass n of Fire Fighters, Local 2203, 877 P.2d at 821. Notwithstanding the mandatory FLSA fee-shifting provision, this Court exercised its discretion and declined to award appellate related attorney s fees. Id. The Court reasoned that no appellate court had previously interpreted the statutory provision at issue, and the appeal was therefore held to be reasonable. Id. at 822. In other cases, this Court has awarded appeal-related fees when a party was successful in defending a challenge to a fee award by the district court. See, e.g., In re Kansas Cong. Dists. Reapportionment Cases, 745 F.2d 610, 614 (10th Cir. 1984); Gurule v. Wilson, 635 F.2f 782, 792 (10th Cir. 1980); Shaw v. Neece, 727 F.2d 947, (10th Cir. 1984). 4

5 Appellate Case: Document: Date Filed: 03/19/2012 Page: 5 In light of the above, the Court should deny Ms. Allers request for appealrelated fees (including expenses and costs). As in International Ass n of Fire Fighters, Local 2203, no appellate court had previously interpreted the statutory provision at issue, Section 1973gg-5(a)(6) of the NVRA, and the instant appeal is therefore reasonable, justifying a denial of attorneys fees. Even further, Ms. Allers consented to the filing of this appeal, and HSD agreed to implement procedures to fully comply with the adverse ruling from the district court during the pendency of this appeal. As the parties explained to the district court in their Joint Motion for Entry of Consent Order: [T]he proposed consent order fully resolves the violation of the NVRA found by this Court in its December 21, 2010 grant of partial summary judgment to Plaintiff. Specifically, in accord with the Court s ruling, the order will require HSD to distribute registration applications to public assistance clients in all transactions covered by the NVRA, unless a client affirmatively requests, in writing, to opt out. In consideration for adoption of these procedures, the order provides that HSD will retain the right to appeal the Court s final judgment insofar as it is based upon the partial summary judgment ruling. The proposed order further specifies that, if an appellate court in this case reverses this Court s partial summary judgment ruling and holds that Section 7 only requires that registration applications be distributed to clients who opt in for voter registration, HSD may implement certain specified alternative procedures for distributing voter registration applications. The proposed order provides that no other provisions of the order will be affected by such an appeal. Thus, even in the event of a successful appeal by HSD, there should be no need for further proceedings before the Court to resolve Plaintiff s Section 7 claims. Aplt. App. at Thus, not only was the appeal reasonable in light of it being a matter of first impression, it was also agreed upon, in exchange for HSD agreeing 5

6 Appellate Case: Document: Date Filed: 03/19/2012 Page: 6 to immediately implement agreed upon procedures in compliance with the district court s order. In addition, and unlike the cases in this Circuit where appeal-related fees are awarded to successful parties in defending a fee award, HSD agreed to the payment of $375,000 in reasonable fees including expenses and costs and did not challenge that payment. Ms. Allers seems to imply that part of the parties settlement agreement on fees included an automatic award of fees on appeal, but this is not the case. The settlement agreement regarding attorneys fees and litigation expenses provides: This agreement also does not affect any request Plaintiff may make for attorneys' fees and expenses relating to work undertaken in responding to the appeal filed in this litigation by Defendants Squier, Roth, and Weinberg, and shall in no way impair Plaintiff s ability to seek recovery of fees and expenses in that regard. Settlement Agreement Regarding Attorneys Fees and Litigation Expenses, dated Apr. 15, 2011, attached hereto as Exhibit A. The agreement therefore only preserved Ms. Allers ability to seek fees. To be sure, the agreement contemplated that Ms. Allers may request fees related to this appeal. In the end, the settlement agreement regarding fees only preserved the statutory avenues already available to Ms. Allers for seeking fees, namely the fee shifting provision of the NVRA. See Hoyt, 11 f.3d at 984 (treating a private contract providing for attorney fees the same as a fee authorizing statute). 6

7 Appellate Case: Document: Date Filed: 03/19/2012 Page: 7 II. Ms. Allers Is Not Entitled to Costs Pursuant to Rule 39 Because She Failed to Comply with the Procedure For Obtaining Costs Under Rule 39(d). Ms. Allers contends that it is this Courts longstanding practice to remand to district court for its determination of... appellate fees, expenses, and costs. Motion at 7 (emphasis added). As discussed supra, if the Court awards appealrelated fees, it may then remand to the district court to determine a reasonable fee award. Indeed, the cases Ms. Allers cites in support of her assertion that both appellate fees and costs are routinely remanded to the district court for determination, actually stand for the proposition that the determination of a reasonable fee, but not costs, are often remanded to the district court. See Roth v. Green, 466 F.3d 1179, 1195 (10th Cir. 2006) (remanding to the district court the amount of fees to be assessed); In re Kansas Cong. Dists. Reapportionment Cases, 745 F.2d 610, 614 (10th Cir. 1984) (same). The appropriate procedure for obtaining costs is provided for in Rule 39(d) of the Federal Rules of Appellate Procedure. See Teton Millwork v. Schlossberg, 2011 U.S. App. LEXIS (10th Cir. Wyo. Sept. 29, 2011) ( In order to obtain his costs, [the appellee] must comply with Rule 39(d) ). The process begins in the appellate court with the filing of an itemized and verified bill of costs within 14 days after entry of judgment. Fed. R. App. P. 39(d)(1). This process also allows for objections to the bill of costs and ultimately results in preparation of an 7

8 Appellate Case: Document: Date Filed: 03/19/2012 Page: 8 itemized statement of costs by the circuit clerk. Fed. R. App. P. 39(d)(2)-(3). The costs may then be recovered in the district court after issuance of the mandate with its statement of costs. Practitioners Guide to the United States Court of Appeals for the Tenth Circuit, Eighth Revision, March 2012, at 58. Ms. Allers has not followed this process; she has not filed an itemized and verified bill of costs and her time to do so has now run. The Court should therefore deny her requests for costs under Rule 39. For the foregoing reasons, HSD respectfully requests that this Court deny in its entirety Ms. Allers Motion for an Order Awarding Appellate Attorneys Fees, Expenses and Costs and Remanding to the District Court for Determination. Respectfully Submitted, GARY K. KING New Mexico Attorney General /s/ Elaine P. Lujan Elaine P. Lujan Assistant Attorney General New Mexico Attorney General s Office 111 Lomas NW, Suite 120 Albuquerque, NM (505) (ph) (505) (fax) 8

9 Appellate Case: Document: Date Filed: 03/19/2012 Page: 9 CERTIFICATE OF SERVICE I hereby certify I served a copy of the foregoing Response to all counsel of record via by filing with the 10 th Circuit ECF system on March 19, /s/ Elaine P. Lujan Elaine P. Lujan 9

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