In the United States Court of Appeals For the District of Columbia Circuit

No. 14-5151 In the United States Court of Appeals For the District of Columbia Circuit THE STATE OF TEXAS, Plaintiff Appellants, v. UNITED STATES OF AMERICA; ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, Defendants, WENDY DAVIS; MARC VEASEY; JOHN JENKINS; VICKI BARGAS; ROMEO MUÑOZ; GREG GONZALES; LISA AGUILAR; DANIEL LUCIO; VICTOR GARZA; BLANCA GARCIA; JOSEPHINE MARTINEZ; KATRINA TORRES; NINA JO BAKER; TEXAS STATE CONFERENCE OF NAACP BRANCHES; JUANITA WALLACE; BILL LAWSON; HOWARD JEFFERSON; ERICKA CAIN; NELSON LINDER; REGINALD LILLIE Intervenors for Defendants-Appellees On Appeal from the United States District Court for the District of Columbia TEXAS S REPLY BRIEF KEN PAXTON Attorney General of Texas CHIP E. ROY First Assistant Attorney General Final (January 29, 2015) Scott A. Keller Solicitor General ARTHUR C. D ANDREA Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 [Tel.] (512) 936-1896 [Fax] (512) 370-9191 arthur.dandrea@texasattorneygeneral.gov

TABLE OF CONTENTS Table of Authorities... ii Summary of Argument...1 Argument...3 I. Texas Did Not Waive Its Shelby County Argument Under The Local Rules...3 II. III. IV. This Dispute Became Moot On The Day The Judgment Was Entered In Shelby County, Not Days Later When The Supreme Court Vacated And Remanded the Case...5 It Makes No Difference That Texas Did Not Challenge The Constitutionality Of Section Five Until Its Appeal To The Supreme Court...6 Texas Did Not Make Any Contrary Claims About Mootness In The District Court And, In Any Event, It Cannot Be Judicially Estopped...8 V. Defendants Cannot Demand Attorneys Fees By Arguing That Their Unlawful Victory Led To Interim Relief Elsewhere...11 Conclusion...13 Certificate of Compliance...15 Certificate of Service...16 i

TABLE OF AUTHORITIES Cases McDonald v. Armontrout, 860 F.2d 1456 (8th Cir. 1988)...11, 12 Murphy v. Hunt, 455 U.S. 478 (1982)...1, 5 N.C. Dep t of Transp. v. Crest St. Cmty. Council, Inc., 479 U.S. 6 (1986)...11, 12 N.C. Right to Life Pol. Action Comm. v. Leake, 939 F. Supp.2d 526 (E.D.N.C. 2013)...11, 12 Saecker v. Thorie, 234 F.3d 1010 (7th Cir. 2000)...9 Other Authorities ROBERT L. STERN & EUGENE GRESSMAN, SUPREME COURT PRACTICE (9th. ed. 2007)...5 ii

SUMMARY OF ARGUMENT The Defendant Intervenors incorrectly argue that Texas waived its Shelby County argument in the trial court. But Texas pressed the argument below, and the trial court s opinion makes clear that the court did not consider the Shelby County argument waived. See, e.g., JA 826 ( The Advisory filed by Texas has narrowed the dispute greatly. Texas rests entirely on Shelby County. Its sole contention is that the Supreme Court, as a matter of fact and law, erased the three judge Court s opinion, and, consequently, Fee Applicants successes before that Court. ). And Texas s Shelby County argument is correct. Texas s preclearance claim became moot the day Shelby County was decided, not a few days later when the Supreme Court vacated the lower court s judgment and remanded for proceedings in light of Shelby County. A case becomes moot the moment some event deprives the plaintiff of a legally cognizable stake in the outcome, not whenever a court takes action (sometimes many months later) to dispose of the moot case. See, e.g., Murphy v. Hunt, 455 U.S. 478, 481 (1982). The Defendant Intervenors claim they are nevertheless entitled to fees because Texas did not squarely challenge the constitutionality of the Voting Rights Act until its appeal to the Supreme Court. It is true that

parties can be barred from relying on intervening Supreme Court decisions if they sleep on their rights, but Texas did no such thing. Texas took the single most effective step that a party can take to ensure that an intervening Supreme Court decision apply in its case: it asked the Supreme Court to hold its appeal for Shelby County. And the Supreme Court obliged. JA 431. When Shelby County was announced, the Supreme Court ordered the lower court to reconsider its judgment in this case in light of Shelby County s constitutional holding. JA 431. The Defendant Intervenors are incorrect to argue that the lower court was free to disregard the Supreme Court s command. Nor does Texas s argument in this Court expressly contradict[ ] what Texas was telling the district court in another context. Joint Br. at 25-26. In the district court, Texas asked the three-judge court to dismiss this case as moot for two independent reasons: the Shelby County decision and the repeal of the redistricting statutes. JA 403-404. The three-judge court found the first reason sufficient, holding that Shelby County alone mooted this case, and that is the argument Texas is pressing on appeal. The Defendant Intervenors, by contrast, have filed a brief in this Court that does expressly contradict[ ] their positions below. The Defendant 2

Intervenors told the three-judge court that the legislative repeal did not moot this case. See Defendant-Intervenors Memorandum in Opposition to Plaintiff State of Texas [s] Motion to Dismiss at 3, Texas v. United States, No. 1:11-cv-1303 (D.D.C.), ECF No. 252 ( Texas [s] adoption of new redistricting plans... does not render this action moot. ); see also id. at 2 n.2 ( [T]he action itself is not moot. ). They lost that argument below, of course, so Texas does not object to their change of heart on appeal. Finally, the Defendant Intervenors argue that they are entitled to fees because they procured an unconstitutional order from the lower court which led to interim relief in another court. But we have found no reported decision giving a party credit for a temporary and undeserved win, no matter how many practical benefits flowed from it, and the Defendant Intervenors have cited none. ARGUMENT I. TEXAS DID NOT WAIVE ITS SHELBY COUNTY ARGUMENT UNDER THE LOCAL RULES. In its opening brief, Texas argued that Shelby County mooted this case (a lawsuit by Texas seeking preclearance) and deprived the Defendant Intervenors of their trial-court victory. In response, the Defendant 3

Intervenors incorrectly claim that Texas waived that argument by failing to press it in the trial court, in violation of the local rules. See, e.g., Joint Br. of Def. Intervs. at 14 ( Texas did not contend that Shelby County alone caused the mootness.... ). But Texas did raise that very contention below, as the trial court itself repeatedly acknowledged. See, e.g., JA 819 ( Texas adds that [t]he only basis upon which the Intervenors could conceivably have claimed prevailing-party status was the three judge Court s denial of preclearance, which the Supreme Court vacated on appeal. ); JA 826 ( The Advisory filed by Texas has narrowed the dispute greatly. Texas rests entirely on Shelby County. Its sole contention is that the Supreme Court, as a matter of fact and law, erased the three judge Court s opinion, and, consequently, Fee Applicants successes before that Court. ); JA 826 ( In short, Texas points to Shelby County and declares checkmate. ); JA 828 ( Texas s only argument against an award of fees and costs here is that Shelby County effectively stripped Fee Applicants of their victory. ). Texas s Shelby County argument was pressed below, passed upon by the trial court, and is correct. Texas is therefore entitled to relief from this Court. 4

II. THIS DISPUTE BECAME MOOT ON THE DAY THE JUDGMENT WAS ENTERED IN SHELBY COUNTY, NOT DAYS LATER WHEN THE SUPREME COURT VACATED AND REMANDED THE CASE. Defendant Intervenors continue to claim that this dispute was not moot on the day Shelby County was announced and the judgment entered, 1 but instead became moot a few days later when the Supreme Court vacated the district court s order denying preclearance. See Joint Br. at 32. That is incorrect. Claims become moot the moment some event deprives the plaintiff of a traceable and redressable injury, not whenever a court gets around to recognizing and acting on that fact, days, weeks, or months later. Murphy v. Hunt, 455 U.S. 478, 481 (1982) (Cases become moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome. ). For example, Hunt s constitutional claim to pretrial bail became moot following his convictions in state court. 1. As Texas explained in its opening brief, the Supreme Court enters judgments the same day that its opinions are announced. ROBERT L. STERN & EUGENE GRESSMAN, SUPREME COURT PRACTICE 823 (9th. ed. 2007) ( The Clerk enters the Court s judgments on the day of decision. ). Of course, the Supreme Court s docket says that the Shelby County judgment was issued approximately one month after the Shelby County opinion, but issuing a judgment to the lower federal courts is not the same as entering it on the Supreme Court s docket. See id. at 824 ( [T]he Clerk forwards to the lower federal court a copy of the opinion or order.... The Clerk takes this action 25 days after entry of judgment. ). 5

Id. at 481. Hunt s claim did not become moot when the Supreme Court acted on that fact two years later. See id. ( Because we find that Hunt s constitutional claim to pretrial bail became moot following his conviction... we now vacate the judgment of the Court of Appeals. ). Indeed, if the Defendant Intervenors are right, they might also argue that Texas s claim did not become moot until the three-judge court held that Shelby County alone mooted them, JA 835, or they might argue that Texas s claim remains live today and until this Court rules on the question and issues a mandate. III. IT MAKES NO DIFFERENCE THAT TEXAS DID NOT CHALLENGE THE CONSTITUTIONALITY OF SECTION 5 UNTIL ITS APPEAL TO THE SUPREME COURT. The Defendant Intervenors note that Texas did not challenge section 5 until it filed its appeal in the Supreme Court. See Joint Br. at 15-16 (arguing that this failure raises a serious potential procedural bar entitling Defendant Intervenors to attorneys fees). They claim that Texas s failure to challenge section 5 in the trial court means that Texas cannot benefit from the favorable intervening decision in Shelby County. See Joint Br. at 34-35. But none of the cases they cite involve a litigant who appealed to the Supreme Court, asked the Court to hold its appeal 6

pending the intervening decision, and was awarded such relief. That is exactly what Texas did here and it is the best way for a litigant to guarantee that an intervening decision will apply to its case. Reply Br. For Appellant Texas, Texas v. United States, No. 12-496 (U.S. Dec. 13, 2012) at 13 ( the Court should hold this case pending its disposition of Shelby County. ). The Defendant Intervenors cannot seriously believe that the trial court could have refused to apply Shelby County to Texas s case on remand, even after the Supreme Court ordered the trial court to reconsider its judgment against Texas in light of Shelby County. Compare JA 431 ( [T]he case is remanded to the United States District Court for the District of Columbia for further consideration in light of Shelby County ), with Joint Br. at 34-35 ( [W]here an issue is not preserved for appeal... a party cannot benefit from an intervening decision. ). In any event, the Defendant Intervenors already pressed this waiver argument in the Supreme Court and lost. In opposing Texas s jurisdictional statement in the Supreme Court, the Defendant Intervenors, along with the United States, argued that the Supreme Court had no 7

power to hear Texas s section 5 challenge because it was not raised below. 2 But the Supreme Court brushed aside those objections, exercising jurisdiction of the appeal, giving Texas a win, and ordering the trial court to enter a judgment consistent with Shelby County a case whose only question presented was a facial challenge to the Voting Rights Act. IV. TEXAS DID NOT MAKE ANY CONTRARY CLAIMS ABOUT MOOTNESS IN DISTRICT COURT AND, IN ANY EVENT, IT CANNOT BE JUDICIALLY ESTOPPED. The Defendant Intervenors claim that Texas should be barred from making its Shelby County argument because it expressly contradicts what Texas was telling the district court in another context. Joint Br. at 25-26. We disagree for two reasons. First, Texas has not sharply reverse[ed] course. Id. at 26. In the district court, Texas asked the three-judge court 2. See, e.g., Brief citing Williams. MALC Intervenors Motion to Affirm at 9 ( Texas avers that the amendment is unconstitutional, J.S. 33, but the State is precluded from advancing that claim for the first time on appeal. ). United States Motion to Affirm In Part at 9 ( Section 5's constitutionality is not presented in this case as Texas... may not raise it for the first time on appeal. ); Davis Intervenors Motion to Affirm 32 n.15 ( Texas now lists as one of its questions presented whether the 2006 reauthorization.., is constitutional. J.S.i. That question is not properly before this Court. ); TLRTF Motion to Affirm at 38-39 (arguing that this case is a poor vehicle because [t]he constitutional claim advanced by Texas for the first time in this appeal has not been developed in or ever considered by the district court. ). 8

to dismiss this case as moot for two independent reasons: (1) the Shelby County decision and (2) the repeal of the redistricting statutes. JA 403-404. Indeed, Texas s motion to dismiss as moot consisted only of two paragraphs. The first explains that [t]he Supreme Court ruled in Shelby County... that the coverage formula in Section 4(b) of the Voting Rights Act is unconstitutional and can no longer be used as a basis for subjecting jurisdictions to preclearance.... Given that Texas is no longer subject to preclearance, its claims in this Court are now moot. JA 403. The second paragraph explains that [t]he State of Texas further advises the Court that on June 23, 2013, the Texas Legislature enacted new electoral districts... thus eliminating any basis for this Court s jurisdiction. JA 404. Texas offered these two independent basis for jurisdictional dismissal, yet Defendant Intervenors quote only the second paragraph, in full, without the relevant context. See Joint Br. at 25-26. In any event, even if Texas had insisted that the legislative repeal made this case even more moot, Texas could not be judicially estopped from arguing otherwise here. Judicial estoppel applies only when a party wins its argument the first time around; the doctrine does not force a party to lose twice. Saecker v. Thorie, 234 F.3d 1010, 1014 (7th Cir. 2000) ( The 9

suit is also barred by the doctrine of judicial estoppel, which forbids a party who has prevailed in one suit to repudiate the ground on which he prevailed in order to win a subsequent suit. ). And the three-judge court accepted as sufficient the Shelby County ground for mootness, holding that, whatever the effect of the legislative repeal, Shelby County alone mooted this case. If anyone has sharply reversed course it is the Defendant Intervenors. On remand from the Supreme Court, the Defendant Intervenors told the three-judge court that Texas [s] adoption of new redistricting plans... does not render this action moot. See Defendant-Intervenors Memorandum in Opposition to Plaintiff State of Texas [s] Motion to Dismiss at 3, Texas v. United States, No. 1:11-cv-1303 (D.D.C.), ECF No. 252; see also id. at 2 n.2 ( [T]he action itself is not moot. ). And they repeated that argument in U.S. District Court for the Western District of Texas. See, e.g., Reply to State s Opposition to Plaintiffs Motions for Leave to Amend at 3 4, Perez v. Texas, No. 5:11-cv-00360 (W.D. Tex.), ECF No. 832 ( [T]he challenges to the 2011 plans remain live challenges.... The current 2011 challenges are not moot. ). The Defendant Intervenors were arguing against mootness because they wanted the 10

three-judge court to use its vacated preclearance judgment as a basis for bail in under section 3(c) of the Voting Rights Act, but the court refused. Nevertheless, for the same reasons we explained above, the Defendant Intervenors cannot be bound by their prior inconsistent statements. They argued below that the legislative repeal did not moot this case, but they lost, so they are free to contradict themselves in this Court, because judicial estoppel does not apply when a previous court rejects a party s arguments. V. DEFENDANTS CANNOT DEMAND ATTORNEYS FEES BY ARGUING THAT THEIR UNDESERVED VICTORY LED TO INTERIM RELIEF ELSEWHERE. The Defendant Intervenors argue that their prevailing party status is independently established because their unconstitutional victory in the trial court led to interim relief in another court. Joint Br. at 35-42. The federal system should regret that an unlawful and short lived victory in this case might have caused another court to grant interim relief. It should not, and never has, used such a victory (one that was thrown out as unconstitutional on appeal) as a basis for awarding fees, in any court, and none of the cases the Defendant Intervenors cite hold otherwise. See Joint Br. at 36 (citing N.C. Dep t of Transp. v. Crest St. Cmty. Council, Inc., 11

479 U.S. 6, 15 (1986); N.C. Right to Life Pol. Action Comm. v. Leake, 939 F. Supp.2d 526, 531 (E.D.N.C. 2013); McDonald v. Armontrout, 860 F.2d 1456, 1462 (8th Cir. 1988)). Crest Street, for example, held only that a civil rights plaintiff could recover under section 1988 the discrete portion of the work product from [prior] administrative proceedings that was both useful and of a type ordinarily necessary to advance the civil rights litigation. Crest St., 479 U.S. at 15. It did not say that a civil rights plaintiff could recover fees because its efforts to obtain an unconstitutional order in one court may have led to some relief in another. And it certainly never held that a government or its intervening defenders could obtain fees for the period of time in which they forced an ultimately successful plaintiff to obey an unconstitutional law. Defendant Intervenors should not be allowed to trumpet interim relief in a different court as a reason to inflict further harm on the party whose constitutional rights were violated in this case. For example, the Defendant Intervenors argue that [h]ad the Davis Intervenors not intervened, the state senate plan would have been precleared in 2011. Joint Br. at 38. But all that argument means is that the Davis Intervenors inflicted a constitutional injury on Texas in 2011, which the 12

Supreme Court eventually rectified. The Davis Intervenors deserve no credit, and certainly not a million dollars in fees, for piling on to Texas s constitutional injury. As we explained in our opening brief, to no response, this would be an obvious proposition if Texas were an individual asserting a First or Fourteenth Amendment Claim against the United States. Texas Br. at 19 ( The United States did not prevail in the Pentagon Papers case because it succeeded in delaying publication until the Supreme Court could act. ). We do not understand why a different rule should apply to States, and the Defendant Intervenors have offered none. Indeed, we have found no reported cases where a government (or someone who intervened to defend the government s statutes) was declared a prevailing party because they successfully coerced a party into compliance with an unconstitutional statute, right up until it lost on appeal. CONCLUSION The Court should vacate order awarding attorneys fees to the Defendant Intervenors. 13

Respectfully submitted. KEN PAXTON Attorney General of Texas CHIP E. ROY First Assistant Attorney General SCOTT A. KELLER Solicitor General /s/ Arthur C. D Andrea ARTHUR C. D ANDREA Assistant Solicitor General ALEX POTAPOV Assistant Solicitor General OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 [Tel.] (512) 936-1896 [Fax] (512) 370-9191 arthur.dandrea@texasattorneygeneral.gov COUNSEL FOR STATE OF TEXAS 14

CERTIFICATE OF COMPLIANCE In accordance with Federal Rule of Appellate Procedure 32(a)(7) and D.C. Circuit Rule 32(a), I certify that the accompanying brief has been prepared in Word Perfect 12 using 14-point Century Schoolbook typeface and is double-spaced (except for headings, footnotes, and block quotations). I further certify that the brief is proportionally spaced and contains 2,808 words, excluding the parts of the brief exempted by D.C. Circuit Rule 32(a)(1). Word Perfect 12 was used to compute the word count. Dated: January 29, 2015 /s/ Arthur C. D Andrea Arthur C. D Andrea 15

CERTIFICATE OF SERVICE I certify that, on January 29, 2015, I electronically filed this brief with the Clerk of the Court using the CM/ECF System, which will send notice of such filing to all registered CM/ECF users. I further certify that nine (9) paper copies of the documents will be delivered to the Clerk of the Court via Federal Express next-day service. /s/ Arthur C. D Andrea Arthur C. D Andrea 16