Fourth Circuit Finds Lower Court Erred in Attorney’s Fee Award

RICHMOND, Va. (CN) – After finding that the commonwealth need not foot the bill for members of Congress who intervened in the case, the Fourth Circuit said Tuesday it’s up to a lower court to reset a $1.35 million award of attorneys’ fees in a long-running Virginia gerrymander case.

Tuesday’s ruling, written for a three-judge panel by U.S. Circuit Judge Paul Niemeyer, is the latest chapter in a case that began when three Virginia voters sued the commonwealth, claiming the most recent version of the its congressional district map included a racial gerrymander violating the Equal Protection Clause of the 14th Amendment.

Shortly after the lawsuit was filed, eight members of Congress — all from Virginia but none from the allegedly gerrymandered district — were granted permission to intervene in the case because redrawing the lines of the offending district would ultimately change the borders of their districts as well.

The plaintiffs prevailed at trial, and the commonwealth accepted the decision of the court. However, the intervening members of Congress did not and they appealed to the U.S. Supreme Court. The justices then remanded the case back to the trial court, which reaffirmed that a racial gerrymander had occurred.

Once again, the commonwealth declined to appeal the decision, but the intervening members of Congress pressed on, again returning the case to the U.S. Supreme Court. This time the justices declined to hear the case saying the congressional interveners lacked standing.

Though divided 2-1, the trial court panel then awarded the plaintiffs $1.35 million in attorneys’ fees, assessing about $480,000 of the fees against the intervening members of Congress based on their appeals to the Supreme Court.

Senior U.S. District Judge Robert Payne dissented, arguing that Supreme Court  precedent mandated that interveners are “blameless” in the cases they become involved in. Payne said by precedent, the only time interveners should be assessed attorney’s fees is when their involvement in the case is “frivolous, unreasonable, or without foundation.”

The Congress members appealed to the Fourth Circuit.

In his ruling, Judge Niemeyer noted that the intervening members of Congress were not alleged to have carried out the unconstitutional gerrymandering and were incapable, as federal officials, of adopting a new redistricting plan for the state.

Relying on the precedent set by 1989’s Flight Attendants v. Zipes, the three-judge panel found courts may charge fees against those who violate civil rights, but not against those who “have not been found to have violated anyone’s civil rights” as long as their challenges are not “frivolous, unreasonable, or without foundation.”

In sum, Niemeyer wrote, “the relief that the plaintiffs sought [in the Virginia gerrymandering case] could not have been obtained from the Intervening Congressmen. … Accordingly, the Intervening Congressmen were not responsible for the plaintiffs’ fees.”

In deciding otherwise, the three-judge panel said, the district court relied on an interpretation of Zipes that was “simply not justified, either by its holding or its reasoning.”

In light of all this, and despite the plaintiffs’ contention that they are entitled to the entire $1.35 million attorney’s fee award, the Fourth Circuit concluded the commonwealth cannot be held liable for costs incurred by the intervention of the Congress members. “Under the traditional American rule, the plaintiffs must bear those intervention-related fees,” Niemeyer wrote.

The Fourth Circuit vacated the attorneys’ fees award and remanded the case so that the trial court can take another look at what the commonwealth actually owes.

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