Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA

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1 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 1 of 13 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA LUTHER SCOTT, JR., and LOUISIANA STATE CONFERENCE OF THE NAACP, Plaintiffs, Civil Action No. 2:11-cv JTM-JCW Section H v. TOM SCHEDLER in his official capacity as the Louisiana Secretary of State, RUTH JOHNSON, in her official capacity as Secretary of the Louisiana Department of Children & Family Services, and BRUCE D. GREENSTEIN, in his official capacity as Secretary of the Louisiana Department of Health & Hospitals, Defendants. MEMORANDUM OF LAW IN OPPOSITION TO THE REDUCTION OF ATTORNEYS FEES SOUGHT BY SECRETARY OF STATE SCHEDLER Plaintiff Louisiana State Conference of the NAACP, through undersigned counsel, respectfully files this memorandum of law in opposition to Defendant Secretary of State Tom Schedler s (the Secretary ) Motion for Reduction in Attorneys Fees After Remand by Fifth Circuit Court of Appeals. Doc While Plaintiff agrees that the Secretary may be entitled to some reduction of fees in light of the Fifth Circuit s decision regarding the remote transactions issue, the Secretary s proposed reduction is excessive and is inconsistent with the merits decision of the Fifth Circuit. Moreover, the Secretary s requested fee reduction extends well beyond the scope of the District Court s Order of Referral. Doc. 543.

2 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 2 of 13 RELEVANT FACTS AND PROCEDURAL HISTORY On remand from the Fifth Circuit, the District Court was principally required to decide two issues: (i) the scope of the modified injunction as to the Secretary (the only appealing Defendant), consistent with the decision of the Fifth Circuit; and (ii) to consider whether, if at all, to alter the award of attorney s fees against the Secretary. Doc (Fifth Circuit Opinion at 17) (emphasis added). Plaintiff sought, and received, a modified permanent injunction as to the Secretary (Doc. 538) that is reflective of the Fifth Circuit s rulings. The District Court subsequently referred the following matter to this Court for determination: The Court has determined that the Secretary of State is entitled to a reduction in attorneys fees awarded for remote transactions. Accordingly, this matter is referred to Magistrate Judge [Wilkinson] for a determination of the amount of the reduction. Doc. 543 at 1 (emphasis added). Plaintiff acknowledges that the Secretary may be entitled to some reduction of the previous award based on his partial success on appeal. However, despite acknowledg[ing] that the NAACP was a prevailing party and being unable to point to the kind of extraordinary circumstances that would justify a denial of fees altogether, (Doc. 547 at 4), the Secretary s proposal to reduce fees would effectively annul his liability to Plaintiff. While the Secretary concedes Plaintiff s success and status as a prevailing party, he nonetheless argues that a total reduction of fees and expenses should be at least 98 percent or 23 percent downward from the original 75 percent. Doc. 547 at 13 (emphasis added); see also Doc. 547 at 11 (claiming that the remote transactions issue warranted an additional fee and expense reduction against Schedler... of at least 20 percent or 95 percent total reduction in addition to the original 75 percent). The Secretary s requested reduction is grounded neither in the District Court s Order 2

3 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 3 of 13 referring the fees matter to this Court nor in the decision of the Fifth Circuit. Doc Instead, the Secretary s request is based on material misapprehensions of the scope of the District Court s referral to this Court, and of the work done by Plaintiff s counsel and the relevant time periods. For the reasons set forth below, Plaintiff contends that any reduction in fees and costs to be paid by the Secretary must be modest and fair, directly rooted in the District Court s Order reflecting the judgment of the Fifth Circuit panel, and limited to the remote transactions issue. Plaintiff respectfully submits that the applicable reduction should be no more than twenty percent (20%), after apportioning fees and costs among the three Defendants. As the Secretary s one-third share of fees ($129,913.65) and costs ($11,417.19) totals $141,330.84, a 20% reduction leaves $113, This is far more reasonable than the Secretary s proposal to reduce Plaintiff s awarded fees and costs by 95-98%. ARGUMENT I. Any Reduction in Fees Must be Limited to the Issue of Remote Transactions. The Secretary s claim that the dismissal of Scott s claims and the reversal of the declination issue require an additional reduction of the fees award is incorrect. Doc. 547 at 12. The Fifth Circuit did not mandate any fee reduction at all, instructing instead that the District Court must consider whether, if at all, to alter the award of attorney s fees. Doc (Fifth Circuit Opinion at 17) (emphasis added). The Fifth Circuit left the District Court free to decide that only a limited reduction (or, indeed, no reduction) in fees would be acceptable. And the District Court s referral of this matter to this Court was narrow and precise: The Court has determined that the Secretary of State is entitled to a reduction in attorneys fees awarded for remote transactions. Accordingly, this matter is referred to Magistrate Judge [Wilkinson] for a determination of the amount of the reduction. Doc. 543 at 1 (emphasis added). The District 3

4 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 4 of 13 Court was within its authority to limit the inquiry on the fee reduction to attorneys fees related to the issue of remote transactions. This Court should follow the instructions of the District Court and is limited to recommending a reduction of attorneys fees based only on remote transactions. A fee reduction based only on remote transactions is appropriate because, as the District Court is aware, there was already a significant reduction of the fees in the original award. Plaintiff originally sought $1,611, in attorney fees. Doc This Court reduced that request by 75%, recommending that Plaintiff only receive $355, in fees. Doc. 485; see also Doc Other than correcting one small mathematical error, the District Court accepted this Court s recommendation. Doc Consequently, any reduction for issues beyond remote transactions is fairly captured within the 75 percent reduction this Court made already in the original order setting the fee award. 1 Accordingly, this Court should not depart from the District Court s referral to consider a reduction for only remote transactions and should not consider additional reductions for other issues. II. The Secretary Misrepresents the Time Period Relevant to Remote Transactions. The Secretary argues that between November 2, 2011 and September 5, 2012 (when the second partial summary judgment motion was decided, Doc. 342), virtually all of the work in the case was devoted to the single issue of remote transactions. Doc. 547 at 6. This representation is both inaccurate and unsupported by the time records submitted by Plaintiff s counsel. Contrary to the Secretary s claim, during the time period in question discovery was 1 Moreover, the District Court s approach also takes into account that a significant amount of the legal work in this case outside of the remote transactions issue largely did not involve or concern the Secretary; rather, much of the work applied principally to DCFS and DHH. 4

5 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 5 of 13 proceeding on all issues relevant to the claims against all Defendants. The Secretary cannot credibly claim, for example, that the November 2011 depositions of Kim Ricks or John Mancuso, both caseworkers at public benefits offices, were primarily (or even largely) related to the remote transactions issue. Similarly, in the December 2011 deposition of Joanne Reed, who is employed by the Secretary as an Election Program Administrator, the issue of remote transactions did not arise at all. In fact, nearly all work on the remote transactions issue was completed by April 20, 2012, when the District Court heard oral arguments. Doc Ultimately, the District Court decided the issue on May 3, 2012 on Plaintiff s motion for partial summary judgment as to all Defendants, holding that remote transactions were covered by Section 7 of the National Voter Registration Act ( NVRA ). Doc The Secretary s remarkable contention that remote transactions remained the central issue in this litigation after the May 2012 decision is completely at odds with his previous representations to this Court. In his February/March 2013 opposition to Plaintiff s original fee petition: The Fried Frank firm enrolled its first lawyer in the case on August 15, At that point... [t]he principal issue in the case, whether voter registration services at public assistance offices designated under Section 7 of the NVRA, must be offered for remote versus in person transactions, had been decided. Doc. 474 at 5 (Secretary s opposition to fee petition, citing Doc. 212, deciding the partial summary judgment motion on the remote transactions issue on May 3, 2012). Consistent with that view, the Secretary filed a motion for certification of that decision for interlocutory appeal less than a week later, on May 9, Doc The motion was denied on June 8, Doc Thus, his current claim that virtually all the work between May 3, 2012 and 2 The motions practice for the interlocutory appeal in May 2012 was procedural in nature, and as such no reduction of fees is warranted. However, if a reduction in fees is granted, 5

6 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 6 of 13 September 5, 2012 (in addition to the earlier period) was on remote transactions is both inaccurate and irreconcilable with his previous representations to this Court. The difference between using May 3, 2012 the proper end date for remote transactions as opposed to September 5, 2012, is significant. Even assuming the accuracy of the line items identified by the Secretary in the Exhibits to his current motion (which Plaintiff addresses further below), the entries between November 2, 2011 and May 3, 2012 add up to only hours across all counsel, instead of hours over the Secretary s longer proposed period through September 5, 2012 an overage of 1, hours. 3 Doc. 547 at 11 & Doc through -13. A review of the issues litigated after May 3, 2012 confirms the Secretary s error. After that date, the work performed by Plaintiff s counsel was focused on the remaining issues and preparation for trial, rather than the already-decided conclusion of law regarding remote transactions. See Doc. 241 (Plaintiff s July 3, 2012 motion for partial summary judgment discussing voter preference forms, change of address, missing language from various forms, the declination questions on forms, and the equal assistance obligation). Indeed, in the Secretary s opposition to the second partial summary judgment motion, filed August 16, 2012, he only mentions remote transactions twice in his entire 68-page brief, both times discussing merely how various forms were coded and counted. See Doc. 309 at 55 (discussing for purposes of calculating U.S. Election Assistance Commission numbers that certain forms distributed by this court should, first, reduce only as to the Secretary s share; and second, fees should only be reduced as to work directly related to the interlocutory appeal and stay of enforcement during that short period, not with respect to any other attorney work on the other substantive issues in this case during that period that had nothing to do with the remote transactions issue. 3 When adding the lines designated by the Secretary in the Exhibits, the total for all reductions is 2, hours, while the table provided on page 11 of Doc. 547 shows a reduction of 2, hours. Compare Doc. 547 at 11, with Doc through

7 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 7 of 13 remote means or otherwise not completed at the time of in person services, are not instructed to be coded PA (or 02). ); id. at 58 (noting that DCFS offers its covered services by remote means further[] casting doubt on the completeness of the PA reported number ). The Secretary is playing fast and loose with the court by changing positions based upon the exigencies of the moment, Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 400 (5th Cir. 2003) (citation omitted). This Court should not countenance the Secretary s shifting representations regarding the duration of the remote transactions issue in the District Court. III. The Secretary Improperly Discounts Fees and Costs Related to the Other Defendants. The Secretary urges the Court to strike time entries reflecting litigation against all three Defendants not just against him. His wholesale deletion of these items has no basis whatsoever in the Fifth Circuit s ruling. Doc. 547 at This Court cannot, as the Secretary requests, discount fees and costs owed to Plaintiff s unchallenged successes against the Department of Children and Family Services ( DCFS ) and the Department of Health and Hospitals ( DHH ). Those non-appealing Defendants are the primary providers of direct services subject to the NVRA and remain subject to all aspects of the original injunction. Discounting any portion of fees or costs incurred in the successful prosecution of claims against these Defendants would not be supported in any way by the decision of the Fifth Circuit panel or the District Court s Order. 4 In fact, the Secretary conceded during oral argument before the District Court that the original injunction against the non-appealing Defendants remains in force today: 4 In fact, the Fifth Circuit specified that its decision did not affect the other Defendants, see Doc (Fifth Circuit Opinion at 18 n.18) ( We note again that the injunction against DCFS and DHH is unaffected by this opinion, as it has not been appealed. ), a position echoed by the District Court, see Doc. 538 at 1 n.1 ( Sonnier and Greenstein did not appeal. Therefore, the original Injunction remains in full effect as to them. ). 7

8 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 8 of 13 THE COURT: [T]he fact that they are bound and it s res judicata and that s the law as to DCFS and DHH, they are required to provide their services in remote transactions but the Secretary of State is not required to provide training on that. MS. CANGELOSI: That s how we interpret it. Oral Arg. Transcript at 13:12-25 (attached hereto as Exhibit A). The Secretary s approach in his filing related to the fee modification is wholly inconsistent with these settled facts. 5 Moreover, this approach is contrary to the Secretary s own admission, that the District Court s Order requires reduction only as to him, in his opening papers for this motion. Doc. 547 at 13. The Secretary s proposed deletion of all line items relating to remote transactions ignores the fact that Plaintiff was litigating against three Defendants. His proposed approach discounts Plaintiff s success as to all claims against the other Defendants, has no basis in the Fifth Circuit s decision, and dramatically overestimates the amount of fees and costs that may be reduced. IV. The Secretary Ignores that Plaintiff Prevailed on Claims Applying Solely to Him. The Secretary hyperbolically discounts Plaintiff s success in this litigation, both as a whole and as against him, claiming, for example, that after the Secretary s appeal, Plaintiff was left with scant success, and that any award of fees and expenses against Schedler is difficult to justify. Doc. 547 at 12. This is simply wrong and cannot form the basis for any reduction in fees. As it pertains to the Secretary, the largest single issue was not whether remote transactions were covered by the NVRA (which was not decided on the merits by the Fifth 5 Even Defendants DCFS and DHH have effectively conceded these points, arguing in United States v. Louisiana, an NVRA case in the Middle District of Louisiana, that the case (which includes remote transaction claims) is moot given the status of this case. See United States v. Louisiana, No. 3:11-cv (M.D. La. Mar. 20, 2015) (Docs. 220, 220-2, 220-3). 8

9 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 9 of 13 Circuit, only vacated on procedural grounds), but instead whether (a) the Secretary of State had coordination responsibilities and attendant enforcement authority under the NVRA; and (b) the Secretary failed to discharge such responsibilities. Plaintiff was completely successful, through multiple stages of appellate review (i.e., both with the original Fifth Circuit panel, and in opposing the Secretary s petition for en banc review of the panel s determination), in holding the Secretary responsible for coordinating and enforcing the compliance of public assistance agencies including DCFS and DHH with the NVRA. Doc (Fifth Circuit Opinion at 13 ( The NAACP s interpretation of coordinate is more compatible than Schedler s with the NVRA s concern for centralization. Under Schedler s view, aggrieved parties could sue the state agencies, the DCFS and the DHH, but not the Secretary of State. But the NVRA s centralization of responsibility counsels against such buck passing. ) (emphasis added)). For the Secretary to claim that this litigation had so little success that it should never have been brought is belied by the facts, and by his own attempt to seek further appellate review on the issue most central to his office s role in the NVRA. Doc. 547 at 12. At all stages, Plaintiff was successful on the issue most relevant to the Secretary. Accordingly, there is no justification to reduce fees by 98% as preposterously suggested by the Secretary. Doc. 547 at 13. V. Any Fee Reduction Should Be Applied After the Apportionment Between Defendants and Should Not Exceed 20%. The District Court originally entered an order awarding Plaintiff $355, in fees and $34, in costs (totaling $389,740.95), which, but for one computational adjustment, adopted this Court s methodology and determination in its entirety. Doc. 491; Doc. 485 (Report and Recommendation). This award was applied to all three Defendants. See id. Plaintiff agrees with the Secretary that there should now be an apportionment of fees as part of the process for determining any reduction in fees and costs. As the Secretary admits, the District Court s Order 9

10 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 10 of 13 expressly requires a reduction in the award as to the Secretary only. Doc. 547 at 13. This Court need only determine what portion of the original award for fees and costs should be attributed to the Secretary. Given that there were originally three Defendants, the most logical way to apportion the Secretary s liability for fees is to apportion one-third of the original award of $389,740.95, or $129,913.65, to the Secretary. Similarly, one-third of the original expense award of $34,251.57, or $11,417.19, should be apportioned to the Secretary. Rather than adopt the Secretary s proposal to cut various time periods and line items wholesale from the award (which is improper as discussed above), this Court should simply apply an appropriate percentage reduction to the Secretary s portion of fees and costs, totaling $141, Given that the Secretary suggests that a reasonable reduction for work related to remote transactions would be in the range of an additional 20% (Doc. 547 at 11), Plaintiff submits that any reduction should be capped, at the most, at this percentage. Under this metric, the Secretary would be responsible for $103, of the fee award and $9, for expenses (totaling $113,064.67). CONCLUSION The Secretary s absurd contention that the total reduction of fees should be decreased by at least 98 percent from Plaintiff s original fee petition is incongruent with the Fifth Circuit panel s rulings, the facts of this case, and the course of this litigation. For the reasons set forth above, any reduction pursuant to the District Court s order should be limited to the remote transactions issue and capped at 20% of the Secretary s portion of fees and costs. 10

11 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 11 of 13 Dated: October 2, 2015 Respectfully submitted, s/ Jesse Ryan Loffler Jesse Ryan Loffler NY: Israel David NY: Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Natasha M. Korgaonkar NY: NAACP Legal Defense & Educational Fund, Inc. 40 Rector Street, Floor 5 New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Ronald Lawrence Wilson (cabral2@aol.com) LA: Ronald L. Wilson, Attorney at Law 701 Poydras Street, Suite 4100 New Orleans, LA Tel: Michelle Rupp (mrupp@projectvote.org)* + VA: Niyati Shah (nshah@projectvote.org)* ++ NJ: NY: Sarah Brannon (sbrannon@projectvote.org)* +++ MD: Does not issue bar numbers Project Vote th Street NW, Suite 250 Washington, DC

12 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 12 of 13 *MOTION FOR ADMISSION PRO HAC VICE GRANTED + Licensed to practice only in Virginia. Practice in DC limited to cases in federal court. ++ Admitted in New Jersey & New York. Practice in DC limited to cases in federal court. +++ Authorized to practice only in Maryland. Practice in DC limited to cases in federal court. Counsel for Plaintiff 12

13 Case 2:11-cv JTM-JCW Document 551 Filed 10/02/15 Page 13 of 13 CERTIFICATE OF SERVICE I hereby certify that on the 2nd of October, 2015, I electronically filed the foregoing Memorandum of Law in Opposition to the Reduction of Attorneys Fees Sought by Secretary of State Schedler, using the CM/ECF system, which will send a notice of electronic filing to persons electronically noticed. I further certify that I mailed the foregoing document and the notice of electronic filing by first class mail to any non-cm/ecf participant. s/ Jesse Ryan Loffler Jesse Ryan Loffler (jesse.loffler@friedfrank.com)* NY: Fried, Frank, Harris, Shriver & Jacobson LLP One New York Plaza New York, NY *MOTION FOR ADMISSION PRO HAC VICE GRANTED Counsel for Plaintiff 13