in the united states district court for the …case 5:11-cv-00788-olg-jes-xr document 193-1 filed...

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

WENDY DAVIS, et al., §

Plaintiffs, §

§ CIVIL ACTION NO.

§ SA-11-CA-788-OLG-JES-XR

§ [Lead Case]

RICK PERRY, et al., §

Defendants. §

____________________________________

LEAGUE OF UNITED LATIN §

AMERICAN CITIZENS (LULAC), §

DOMINGO GARCIA, §

Plaintiffs, §

§ CIVIL ACTION NO.

v. § SA-11-CA-855-OLG-JES-XR

§ [Consolidated Case]

RICK PERRY, et al., §

Defendants. §

____________________________________ §

DAVIS PLAINTIFFS’ BRIEF IN SUPPORT OF

MOTION FOR ATTORNEYS’ FEES, EXPENSES, AND COSTS

On September 4, 2013, this Court ordered that “as prevailing parties, Plaintiffs are

awarded their reasonable attorneys’ fees and costs.” Sept. 4, 2013 Order at 2 (ECF 190).

Accordingly, pursuant to 28 U.S.C. § 1920, 42 U.S.C. § 1973l(e), 42 U.S.C. § 1988, Fed. R. Civ.

P. 54(d), and Western District of Texas Local Rule CV 7(j), the Davis Plaintiffs submit this brief

and attached supporting material in support of their motion demonstrating the reasonableness of

the fees, expenses, and costs sought. Based thereupon, and upon the record in this case, the

Davis Plaintiffs seek a total sum of $616,813.45 in fees, expenses, and costs.

BACKGROUND AND FACTS

Plaintiffs brought this case pursuant to 42 U.S.C. § 1973, 42 U.S.C. § 1973c, and the

Fourteenth and Fifteenth Amendments to the United States Constitution seeking declaratory and

Case 5:11-cv-00788-OLG-JES-XR Document 193-1 Filed 09/24/13 of 21

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injunctive relief against enforcement of the state senate redistricting map enacted by the Texas

legislature and signed by the Governor in response to the 2010 Census (hereinafter “SB 14”).

Plaintiffs alleged that the state senate redistricting plan intentionally fractured and fragmented

politically cohesive minority voters in Senate District 10, thereby diluting and minimizing their

voting strength. Plaintiffs further alleged that “[i]t is unlikely that the State of Texas will have a

legally enforceable state senate redistricting plan when candidate qualifying opens later this year

because it does not meet the requirements of the Voting Rights Act.” Compl. at ¶¶ 23, 29 (ECF

No. 1).

Plaintiffs sought, among other things, for the Court to: issue a declaratory judgment that

the pre-2011 state senate plan (“S100”) was malapportioned in violation of the Fourteenth

Amendment to the United States Constitution Compl. at ¶¶ 12-20, 24-27, Prayer for Relief ¶ 3;

enjoin the State from implementing its enacted state senate plan (“S148”) because it had not and

would not receive Section 5 preclearance under the Voting Rights Act, id. at ¶¶ 22-23, 28-29,

Prayer for Relief ¶ 6, and order into effect a new state senate redistricting plan that met the

requirements of the United States Constitution and federal law, id. at Prayer for Relief ¶ 6.

In 2012, following a trial, this Court applied the standards announced by the Supreme

Court in Perry v. Perez, 132 S. Ct. 934 (2012) and found that the benchmark plan was

unconstitutionally malapportioned, and that the state’s enacted plan could not be implemented

because it had not been precleared under Section 5 of the Voting Rights Act. See Feb. 28, 2012

Order (ECF No. 141); Mar. 19, 2012 Order (ECF No. 147). The Court then ordered into place a

new interim redistricting plan for the state senate to be used in the 2012 elections, because the

State had failed to obtain Section 5 preclearance of its enacted senate plan, just as Plaintiffs had

alleged. That court-approved interim redistricting plan, which was used in the 2012 elections,


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restored Senate District 10 to its exact pre-2011 configuration, and provided Plaintiffs with the

exact remedy they sought in this litigation.1 Earlier this year, the State of Texas repealed the

challenged 2011 plan (S148) and adopted the interim court-approved state senate plan as a final

permanent plan.

On September 4, 2013, the Court issued an order declaring

that Plaintiffs’ request for declaratory relief was granted to the extent Senate plan S100,

the benchmark plan, violates the one-person, one-vote requirements of the Equal

Protection Clause of the Fourteenth Amendment to the United States Constitution and

will not be used for any further elections; that Plaintiffs’ request for injunctive relief was

granted such that Senate plan S148, the 2011 enacted plan, has been permanently

enjoined from implementation and no election shave been or will be held thereunder; and

that Plan S172, which was reviewed under the standard set forth in Perry v. Perez and

restored district 10 to near benchmark configuration and remedied the constitutional

infirmities being asserted by Plaintiffs, was used for the 2012 election.

Sept. 4, 2013 Order at 2 (ECF 190). Accordingly, Plaintiffs now seek attorneys’ fees, expenses,

and costs, as set forth in this Court’s order of September 4, 2013. Id.

ARGUMENT

The enforcement of federal civil rights laws depends upon “private litigation as a means

of securing compliance with the law.” Newman v. Piggie Park Enterprises,, Inc., 390 U.S. 400,

401-02 (1968). The availability of fee awards for prevailing parties is critical if private parties

are to undertake litigation to vindicate the civil rights laws. See id. “Congress considered

vigorous enforcement to vindicate civil rights a high priority and entrusted plaintiffs to effectuate

this policy.” Dean v. Riser, 240 F.3d 505, 507 (5th Cir. 2001).

The purpose of providing for an award of such fees and expenses to prevailing parties is

to encourage “‘private attorneys general [to] take it upon themselves to invoke and thereby

invigorate federal constitutional and statutory rights . . . and . . . to insure that those who violate

1 In the 2012 elections, minority voters once again coalesced and re-elected State Senator Wendy Davis to the Texas

Senate.


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the Nation’s fundamental laws do not proceed with impunity.’” King v. Illinois State Bd. of

Elections, 410 F.3d 404, 412 (7th Cir. 2005) (quoting Charles v. Daley, 846 F.2d 1057, 1063

(7th Cir. 1988)). That principle is codified in the Voting Rights Act, which provides that“[i]n

any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth

amendment, the court, in its discretion, may allow the prevailing party, other than the United

States, a reasonable attorney’s fee, reasonable expert fees, and other reasonable

litigation expenses as part of the costs.” 42 U.S.C. § 1973l(e).

Here, Plaintiffs’ action was brought pursuant to the Voting Rights Act to vindicate

important Fourteenth and Fifteenth Amendment rights, see, e.g., Compl. at ¶¶ 1, 3, 25, 31, 40,

41, and 45. As Judge Rodriguez observed in LULAC v. City of Boerne, No. 5:96-cv-00808-XR

(W.D. Tex. Feb. 20, 2013), “[a] prevailing plaintiff in a VRA or civil rights case is presumptively

entitled to an award of fees, unless special circumstances would render such an award unjust.”

(citing Newman v. Piggie Park Enterprises, Inc., 390 U.S. at 402).

I. PLAINTIFFS ARE ENTITLED TO THE REQUESTED ATTORNEYS’ FEES

AND COSTS.

A. The Davis Plaintiffs Are Prevailing Parties.

On September 4, 2013, the Court entered an order declaring “that, as prevailing parties,

Plaintiffs are awarded their reasonable attorneys’ fees and costs.” Sept. 4, 2013 Order at 2 (ECF No.

190). Because Plaintiffs ultimately prevailed by obtaining a “material alteration of the legal

relationship of the parties,” Buckhannon Bd. & Care Home, Inc. v W. Va. Dep’t of Health & Human

Res., 532 U.S. 598, 604 (2001), Plaintiffs are properly awarded attorneys’ fees and costs for all

stages of the litigation. See Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 237-38 (5th Cir. 1990)

(“Even though [the defendant] did not prevail in the initial appeal itself, it did ultimately prevail on


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the merits in the litigation, an integral stage of which was the initial appeal. Consequently, the . . .

award that includes attorneys’ fees for the entire course of the litigation . . . was not unreasonable

. . .”).

B. Plaintiffs’ Fees Are Reasonable.

Having prevailed on their claims and been ordered an award of attorneys fees, expenses,

and costs, the only remaining question is whether the fees sought are reasonable; as explained

below, the fees, expenses, and costs that the Plaintiffs seek are reasonable for litigation of this

type and scope.

An award of attorneys’ fees is calculated using the lodestar method, which is determined

by multiplying “the number of hours reasonably expended on the litigation times a reasonable

hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984); see also Hensley v. Eckerhart, 461

U.S. 424, 433 (1983). The lodestar “is presumed to be the reasonable fee,” Blum, 465 U.S. at

888; accord People Who Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1310 (7th Cir. 1996), and

“includes most, if not all, of the relevant factors constituting a reasonable attorneys’ fee.”

Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 566 (1986).

Two issues are addressed below demonstrating the reasonableness of the Davis Plaintiffs’

requested fees: 1) the reasonable number of hours expended by the Davis counsel to litigate this

case; and 2) the hourly rates sought by Plaintiffs’ counsel. As explained further below, both the

hours incurred and the rates charged were reasonable for a case of this nature.

1. Plaintiffs Seek Compensation For A Reasonable Number of Hours.

This case involved important and difficult constitutional and federal statutory claims.

Texas’s proposed state senate plan threatened the rights of Latino and African-American voters

in Senate District 10 to elect a candidate of their choice, and intentionally cracked minority

voters into several different senate districts to minimize and dilute their voting power. Voting


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rights and redistricting cases like this one are among the most complex federal cases, ranking as

the fifth most difficult to litigate out of forty-two categories of cases (more difficult than antitrust

and SEC/securities cases) according to the case weights issued by the Federal Judicial Center.

(attached as Ex. J).

Plaintiffs thus appropriately hired experienced attorneys who have substantial

redistricting and Voting Rights Act experience, including extensive experience with Texas

redistricting cases. Mr. Richards, for example, was one of the lead attorneys responsible for the

landmark Supreme Court decision in White v. Regester, 412 U.S. 755 (1973), and has been

counsel in numerous Texas voting rights and redistricting cases since that time. See Ex. F

(Richards Decl. at ¶ 3 and Exhibit A thereto).

Plaintiffs’ counsel Paul M. Smith of Jenner & Block is nationally recognized as an

authority on election law and the Voting Rights Act and has litigated numerous redistricting and

Voting Rights Act cases, arguing cases such as Vieth v. Jubelirer, LULAC v. Perry, and

Crawford v. Marion County Board of Elections in the United States Supreme Court. See Ex. G

(“Smith Decl.”) at ¶¶ 3-4. Mr. Smith has argued fourteen cases before the United States

Supreme Court. See id. at ¶ 3. The other Jenner & Block attorneys likewise have considerable

experience with Voting Rights Act, election law, and redistricting litigation. See id. at ¶ 6, Ex. A

to Smith Decl.

Plaintiffs’ lead counsel during the trial phase of this case (J. Gerald Hebert) has

represented clients in prior Texas redistricting and voting rights lawsuits going back several

decades, including cases that have been decided by the United States Supreme Court.2

2 See, e.g., Balderas v. State, No. 6:01-cv-158, 2001 WL 34104833 (E.D. Tex. Nov. 28, 2001), summarily aff’d, 536

U.S. 919 (2002); Foreman v. Dallas County, 521 U.S. 979 (1997); LULAC v. Perry, 548 U. S. 399 (2006); Perry v.

Del Rio, 67 S.W.3d 85 (Tex. 2001).


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Mr. Hebert has served as lead counsel in many redistricting and voting rights cases throughout

the United States and at all levels of the federal system. A listing of voting rights and

redistricting cases he has handled is set forth in Exhibit B. That listing shows he has served as

lead counsel for a party or amicus curiae in over 100 such cases. Indeed, Mr. Hebert is one of

our nation’s foremost voting rights litigators. See Ex. H (Bruce Spiva Decl.) and Ex. I (Stephen

B. Pershing Decl.).

The extensive experience of Plaintiffs’ counsel, particularly in redistricting and voting

rights cases, made them well-suited to handle the litigation responsibilities in this particular case.

Ex. A, (Hebert Decl.) at ¶¶ 3-10; Exhibit B, (Hebert Listing of Cases Handled); Ex. F (Richards

Decl.) at Ex. A (attached to Richards Decl.); Ex. G (Smith Decl.) at ¶¶ 3-5; Ex. I (Pershing

Decl.) at ¶¶ 12-13. Given the importance of the issues presented in this case, and the fact that the

Davis Plaintiffs’ counsel had handled similar cases in the past (and thus could perform their

duties more efficiently than counsel with less experience in this area of law), Plaintiffs were

quite reasonable in retaining attorney Hebert, Richards, and Jenner & Block to advance their

interests throughout the course of this litigation. Id. Furthermore, given the complexity of the

case, and the expertise needed to represent clients in redistricting and voting rights cases, as well

as in representing clients before the Supreme Court, Plaintiffs acted reasonably in obtaining out-

of-state counsel. See Ex. K (Pangburn Decl.) at ¶¶ 2-4; Ex. L (Brooks Decl.) at ¶¶ 2-4. Indeed,

Plaintiffs reasonably believed that they could not adequately vindicate their rights unless they

sought expert counsel from out-of-state. Id.

Plaintiffs’ lawyers also leanly staffed this case, avoiding any duplication of tasks and

using attorneys with appropriate levels of experience to handle the various litigation tasks. See

Ex. A (Hebert Decl.) at ¶¶ 13-14. That this case was staffed leanly and without duplication of


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tasks was true not only among the Davis Plaintiffs’ counsel, but also between counsel for the

Davis Plaintiffs and counsel for the LULAC Plaintiffs (Mr. Luis Vera). See id. at ¶13.3

That Plaintiffs’ lawyers leanly staffed this case is also demonstrated by the fact that just

one attorney (Mr. Hebert) performed the vast majority of the tasks at the trial court level, and

that Plaintiffs only utilized other attorneys with appropriate levels of experience to handle other

various litigation tasks (such as the appeal to the United States Supreme Court). Mr. Hebert took

the lead in drafting all pleadings and other filings, and in handling the trial, drafting proposed

interim remedial plans, and managing certain logistical matters, such as client communications.

See id. at ¶¶ 13-14.4

In order to avoid unnecessary or duplicative work or the inefficient use of resources,

responsibilities in this case were allocated among several different attorneys only when

necessary, and according to the experience and expertise of each attorney. Id. at ¶¶ 13-14. The

Jenner & Block attorneys, who have extensive and specialized experience in handling Supreme

Court cases, performed virtually all of the appellate work in the United States Supreme Court

when Defendants appealed (handling the motion for a stay, legal research, and merits brief

writing). Ex. G (Smith Decl.) at ¶ 5; Ex. A (Hebert Decl.) at ¶13. Mr. Richards served as local

counsel and performed limited but important and necessary tasks, as his time records

demonstrate. Ex. F (Richards Decl. and Exhibit B thereto). This allocation and division of

3 The overall fees and disbursements sought in this case are reasonable and well within the range of what would be

expected for this type of complex litigation. That is especially true where, as here, the case implicated the important

fundamental right to vote and the right to be free of discrimination in the redistricting process. 4 Because Mr. Hebert is a sole practitioner without any legal support staff, he employed legal support staff whose

services he has utilized in prior cases, and they who worked directly under his supervision and control. See Ex. A,

(Hebert Decl.) at ¶15.


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labor was done throughout the litigation to avoid duplication of work and maximize efficiency,

and best utilized the expertise of the attorneys involved. 5

Plaintiffs’ attorneys are seeking compensation for the hours and legal work listed in the

time sheets and invoices attached to the Declaration of J. Gerald Hebert (Ex. A), Declaration of

David Richards (Ex. F), and Declaration of Paul Smith (Ex. G).

As noted above, these fees pertain to work performed by Plaintiffs’ attorneys throughout

the course of this intensive litigation, which included, among other things: preparing and filing a

complaint and amended complaint; responding to Defendants’ motions to dismiss and motion for

summary judgment; responding to two different motions for a stay filed by Defendant Perry

(including one in the United States Supreme Court); briefing an expedited appeal to the United

States Supreme Court; conducting factual and expert discovery, including numerous depositions;

responding to the factual and expert discovery propounded by the State; and presenting trial

testimony and oral argument. Ex. A (Hebert Decl.) at ¶¶13-14; Ex. G (Smith Decl.) at ¶ 5.

Following entry of judgment against Defendants, Plaintiffs’ counsel continued to leanly

staff the case, as Mark Gaber of Jenner & Block prepared this fee motion, with minimal

assistance from other attorneys, so as to minimize the amount of attorney time and fees. Ex. A

(Hebert Decl.) at ¶ 14; Ex. G (Smith Decl.) at ¶ 6.

Based on contemporaneous time records, the Plaintiffs’ attorneys, paralegal, and legal

support staff spent the following hours working on this case (as verified and substantiated in

detail in the attached Declarations of Hebert, Richards and Smith):

5 That Mr. Hebert, a sole practitioner, handled the vast majority of litigation tasks at the trial court level stands in

sharp contrast to the State Defendants who, from 2011 to the present, have listed the names of twelve different

attorneys who have entered appearances or filed pleadings in this Court: David Mattax, Angela Colmenero, Matt

Frederick, David Schenck, Jennifer Settle Jackson, Bruce Cohen, Ana Jordan, Patrick Sweeten, Reed Clay, Daniel

Hodge, Bill Cobb and Greg Abbott.


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ATTORNEY HOURS

J. Gerald Hebert 441.00

David R. Richards 10.00

Paul M. Smith 60.50

Jessica Ring Amunson 129.75

Caroline Lopez 200.75

Mark Gaber 15.00

Neal Ubriani 51.00

NON-ATTORNEY STAFF HOURS

Cheryl L. Olson 60.75

AngleStrategies 220.30

Karina Esparza 1.90

Allison Crowe 16.00

Davis Plaintiffs’ attorneys have reviewed the time records summarized above and

described in Exhibits A, C, D, F and G. These records show sound and reasonable billing

judgment. For example, Davis Plaintiffs’ counsel took care to exclude any time for work that

might be deemed as properly excluded from a court-ordered fee award. Ex. A (Hebert Decl.) at

¶14, and Ex. C (Hebert Time and Expense Records). For example, Plaintiffs do not request

compensation for activity that, although necessary for client relations, did not directly contribute

to the litigation itself, such as numerous telephone calls with clients to discuss the status of the

case. Ex. A (Hebert Decl.) at ¶16 and Ex. C (Hebert Time and Expense Records). In addition,

Davis Plaintiffs’ counsel does not seek fees for any of the time spent traveling to and from San

Antonio in this case, which ordinarily took approximately eight hours of travel time for each

roundtrip. Id. Plaintiffs also do not seek any fee enhancement above the lodestar method,

despite the considerable expertise and experience in this area of the law possessed by Plaintiffs’

counsel. The hours that remain after the attorneys’ review of the time records were reasonably

expended to accomplish the tasks necessary for the successful prosecution of this litigation and


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securing relief in the form of a restored Senate District 10. See Ex. A (Hebert Decl.) at ¶12; Ex.

F (Richards Decl.) at ¶¶ 6-7; Ex. G (Smith Decl.) at ¶ 14.

Counsel for Davis Plaintiffs (Mr. Hebert) has personally verified the time sheets of

AngleStrategies employees as set forth in Exhibit D. Counsel has also reviewed his own

contemporaneous notes of assignments given to AngleStrategies and has verified that the entries

on Exhibit D reflect assignments given by counsel, and has further verified that the time reported

on those time records is correct. All of the work undertaken by AngleStrategies on this case was

taken at the request of and under the direct supervision of counsel for the Davis Plaintiffs (Mr.

Hebert).

2. Plaintiffs Seek Reasonable Hourly Rates For Its Attorneys and Legal

Support Staff.

The hourly rates sought by Plaintiffs’ attorneys (Mr. Gerald Hebert, Mr. David Richards,

and the Jenner & Block attorneys), as well as their paralegal/legal support staff, reflect their

years of practice, litigation experience, expertise. We explain below for each attorney the

exceptionally high level of experience and expertise justifying their hourly rates.6 In addition,

we have also attached to this motion Declarations of highly qualified attorneys attesting to the

reasonableness of the hours and the hourly rates being sought here.

J. Gerald Hebert’s Hourly Rate.

Mr. Hebert, who seeks an hourly rate of $650 in this case, is now in his fortieth year of

practicing law, having spent all of those years in the civil rights area and all but six years in the

field of voting rights and redistricting. He is widely recognized as one of the leading voting

rights and redistricting litigators in the United States. See Ex. H (Decl. of Bruce V. Spiva); Ex. I

(Decl. of Stephen B. Pershing). Mr. Hebert works out of his office in the Washington, D.C. area,

6 The reasonableness of the hourly rate of David Richards is addressed in the attached declaration. See Ex. F,

(Richards Decl.) at ¶ 5.


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and thus his hourly rate reflects the appropriate market rate for the DC area.7 See Ex. H (Spiva

Decl.); Ex. I (Stephen B. Pershing Decl.).

As detailed in his Declaration (Exhibit A) and the listing of cases he has handled over his

forty year legal career (Exhibit B), Mr. Hebert has handled over 100 voting rights cases, with a

number of cases ultimately decided in the United States Supreme Court, including Johnson v.

DeGrandy, Pressley v. Etowah County, Shaw v. Reno, and LULAC v. Perry. In the great

majority of the voting rights or redistricting cases he has handled, Mr. Hebert has served as the

lead trial attorney. Ex. A (Hebert Decl.) at ¶¶ 4-7; Ex. B.

In addition to his vast litigation experience and expertise, Mr. Hebert also has published

or co-authored articles on voting rights and redistricting in scholarly journals (e.g., Yale Journal

of Law and Policy, George Mason University Law Review, and LaRaza Law Journal at the

University of California at Berkeley). See Ex. A (Hebert Decl.) at ¶ 9. He has given lectures or

participated in conferences on voting rights issues at Harvard Law School, Yale Law School,

William and Mary Law School, among other law schools across the country. Mr. Hebert has

7 Because attorney Hebert practices in the District of Columbia or the DC area, his hourly rate is properly based on

prevailing market rates in D.C. See McClain v. Lufkin Indus., Inc., 649 F.3d 374, 383 (5th Cir. 2011) (holding that

district court “legally erred in suggesting that local community rates are always required when out-of-district

counsel are employed,” and remanding to district court to recalculate fees using the firm’s California rates as the

starting point.). However, even if the prevailing market rates for complex cases in the Western District of Texas

were used, the hourly rates of Plaintiffs’ counsel in this case are well within that range. In a far less significant

voting rights case than this one that was brought in the Western District of Texas, litigants submitted affidavits of

attorneys supporting their requested attorneys’ fees stating that the prevailing market rates in the Western District of

Texas are as follows:

5 years of experience - $340.00per hour;

6 years of experience - $390.00 per hour;

7 years of experience - $410.00 per hour;

11 years of experience - $520.00 per hour; and

18 years of experience - $700.00 per hour.

See LULAC v. City of Boerne, No. 96-cv-808, (W.D. Tex.) (ECF Nos.80-2 & 80-3 (Affidavits of Reagan Simpson

and Scott A. Brister)). Thus, according to the affidavits in LULAC v. Boerne, Mr. Hebert’s hourly rate of $650 is

actually below the hourly rate for attorneys with his level of experience in the Western District of Texas.

Furthermore, the attached sworn Declarations by attorneys supporting this fee motion establish that the rates

requested for Mr. Hebert and his staff are very reasonable and well within the range of or lower than the prevailing

market rates in the D.C. area. See Ex. H (Spiva Decl.); Ex. I (Pershing Decl.).


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taught voting rights classes at Georgetown University Law Center (from 1994-2006, and 2013),

American University’s Washington College of Law, and co-taught a voting rights course in 1996

with legal scholar Pamela Karlan at the University of Virginia Law School. Id.8

Mr. Hebert’s hourly rate is similar to prevailing market rates charged by attorneys of

comparable experience and expertise. As indicated in the Laffey Matrix,9 for attorneys with

twenty years or more experience, the hourly rate is currently $771 per hour in the D.C.

metropolitan area. In 2011-2012, when much of this case was litigated, the Laffey Matrix

showed that the hourly rate for attorneys with twenty or more years of experience was $734 per

hour. Thus, Mr. Hebert’s hourly rate is actually lower than the Laffey Matrix rate for an attorney

with his years of experience, and is also lower than other experienced attorneys in law firms in

the Washington, D.C. area. See Ex. I (Pershing Decl.) (“Washington lawyers with lengthy,

high-level federal litigation experience now charge significantly more, and some bill up to and in

excess of $1,000 an hour.”).

Paul M. Smith Hourly Rate10

Mr. Smith seeks an hourly rate of $875 for work completed in 2011 and $950 for work

completed in 2012, and $985 in 2013. Mr. Smith is regarded as an expert in election law and

redistricting, and is an experienced Supreme Court practitioner. He chairs Jenner & Block’s

Appellate and Supreme Court Practice and is co-chair of the Election Law and Redistricting

8 Mr. Hebert also has been quoted or cited in numerous articles or broadcasts as an authority on voting rights, and

has appeared frequently as a panelist at conferences, including the National Conference of State Legislatures

(NCSL), where he has instructed state legislators from across the country on voting rights and redistricting law. Ex.

A (Hebert Decl.) at ¶¶ 9-10.

9 The methodology of calculation and benchmarking for the Laffey Matrix has been approved in a number of cases.

See, e.g., McDowell v. District of Columbia, Civ. A. No. 00-594 (RCL), LEXSEE 2001 U.S. Dist. LEXIS 8114

(D.D.C. June 4, 2001); Salazar v. Dist. of Col., 123 F.Supp.2d 8 (D.D.C. 2000). The Updated Laffey Matrix on

Attorneys’ Fees is attached as Exhibit E. 10

The reasonableness of the rates of the other Jenner & Block attorneys is addressed in the attached Declaration of

Mr. Smith. See Ex. G (Smith Decl.) at ¶ 10.


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Practice. See Ex. G (Smith Decl.) at ¶ 3. He has argued fourteen cases before the United States

Supreme Court, and has considerable experience litigating civil rights cases. Id. For his work,

Mr. Smith has received numerous awards, including the 2010 Thurgood Marshall Award from

the American Bar Association Section of Individual Rights and Responsibilities. He was also

named one of the “Decade’s Most Influential Lawyers” by The National Law Journal. Id. In

addition to his vast experience litigating election law and redistricting cases, Mr. Smith is also

co-author of The Realist’s Guide to Redistricting: Avoiding the Legal Pitfalls (2010). Further

information about Mr. Smith’s qualifications is detailed in his attached declaration. See Ex. G.

The rates sought by Mr. Smith are consistent with the usual and customary hourly rates

for the Firm’s work and these rates have been paid by Jenner & Block’s commercial clients. Id.

at 10. They also appropriately reflect his rate based upon the Washington, D.C. market. See

McClain, 649 F.3d at 383.

Jessica Ring Amunson

Jessica Ring Amunson seeks an hourly rate of $555 for work completed in 2011, $575 for

work completed in 2012, and $625 for work completed in 2013. Ms. Amunson is a partner in

Jenner & Block’s Appellate and Supreme Court Practice and its Election Law and Redistricting

Practice. Ms. Amunson has significant experience briefing matters before the United States

Supreme Court and focuses her practice on election law and redistricting. She has litigated

election law and redistricting matters in a number of states, including litigation involving

disputed elections. Ms. Amunson is frequently recognized for her extensive knowledge of

election law and often speaks on panels regarding issues in redistricting and voting rights. She

was recently featured in a video lecture series for state court judges sponsored by the National

Center for State Court on “Redistricting Litigation: What Every Judge Needs to Know.”


15

The rates sought by Ms. Amunson are consistent with the usual and customary hourly

rates for the Firm’s work and these rates have been paid by Jenner & Block’s commercial clients.

Id. at 10. They also appropriately reflect her rate based upon the Washington, D.C. market. See

McClain, 649 F.3d at 383.

The hourly rates for the Davis Plaintiffs and legal support staff are as follows:

ATTORNEY RATE

J. Gerald Hebert $650.00

Paul M. Smith $875.00 (2011); $950.00 (2012); 985.00 (2013)

Jessica Ring Amunson $555.00 (2011); $575.00 (2012);

David Richards $550.00

Carolyn Lopez $435.00 (2011); $490.00 (2012)

Neal Ubriani $340 (2012); $355 (2013)

Mark Gaber $470 (2013)

NON-ATTORNEY STAFF RATE

AngleStrategies $175.00

Karina Esparza (Richards’ law firm) $95.00

Cheryl L. Olson $280.00 (2011); $295.00 (2012); $310 (2013)

Allison Crowe $160.00 (2011)

II. PLAINTIFFS’ ATTORNEYS’ FEES AWARD SHOULD EQUAL $591,560.50 .

Multiplying the time worked by each attorney and the legal support staff by the hourly

rates for each year yields the following calculation:

ATTORNEY HRS RATE TOTAL

J. Gerald Hebert 441* $650 $286,650.00 *As noted above and in Ex. A and Ex. C, Mr. Hebert has excluded 50 hours of time from his requested fee

in this case.

Paul M. Smith (2011) 47.75 $875 $41,781.25

Paul M. Smith (2012) 10.5 $950 $9,975.00

Paul M. Smith (2013) 2.25 $985 $2,216.25

Jessica Ring Amunson (2011) 96.25 $555 $53,418.75



Caroline Lopez (2011) 172 $435 $74,820.00

Caroline Lopez (2012) 28.75 $490 $14,087.50

Neal Ubriani (2012) 37.5 $340 $12,750.00

Neal Ubriani (2013) 13.5 $355 $4,792.50


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Mark Gaber 15 $470 $7,050.00

David R. Richards 10.0 $550 $5,500.00

NON-ATTORNEY STAFF HRS RATE TOTAL

AngleStrategies 220.3 $175.00 $38,552.50

Karina Esparza (Richards’ law firm) 1.9 $95.00 $180.50

Cheryl L. Olson (2011) 36.25 $280.00 $10,150.00

Cheryl L. Olson (2012) 16.25 $295.00 $4,793.75

Cheryl L. Olson (2013) 8.25 $310.00 $2,557.50

Allison Crowe 16 $160.00 $2,560.00

ALL FEES SUBTOTAL: $591,560.50

C. Davis Plaintiffs Are Entitled to Recover Their Out-of-Pocket Expenses

and Costs, Including Expert Witness Fees.

With regard to expenses and costs, the time sheets and expenses/invoices attached

(Exhibit C) to the Hebert Declaration (Exhibit A), the AngleStrategies timesheets and expenses

(Exhibit D), the expenses listed in the attachments to Exhibit F (Richards Decl.), and the detail

the out-of-pocket expenses incurred by the Davis Plaintiffs. These expenses were necessarily

incurred and are the type of out-of-pocket expenses normally billed to fee-paying clients. Ex. A

(Hebert Decl.) at ¶ 14. As such, they are recoverable as part of plaintiffs’ attorneys’ fees. See W.

Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 87 n.3 (1991). Additional verification and

documentation of these expenses and costs is attached to this motion in Exhibits A, C, D, F, and

G. These “costs” are recoverable as defined by 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d), as

well as other disbursements that were billed to and paid by Plaintiffs or their attorneys as a

component of attorneys’ fees. See Ex. A (Hebert Decl.) at ¶ 14.

It is also appropriate to require Defendants to reimburse Plaintiff’s attorneys for

reasonable costs. An award of reasonable attorneys’ fees pursuant to 42 U.S.C. §1988, for

example, includes an award of “reasonable out-of-pocket expenses incurred by the attorney


17

which are normally charged to a fee paying client.” Neufeld v. Searle Labs., 884 F.2d 335, 342

(8th Cir. 1989) (citing Laffey v. Nw. Airlines, Inc., 746 F.2d 4, 30 (D.C. Cir. 1984), cert. denied,

472 U.S. 1021 (1985)); see also Rendon v. AT&T Techs., 883 F.2d 388, 399 (5th Cir. 1989)

(concluding timely request for fees and expenses is appropriate). Here, Plaintiffs have included

in the supporting declaration a detailed accounting requesting compensation for such out-of-

pocket expenses as service of the complaint on the four defendants, travel, exhibit preparation,

copies, map production, deposition costs, and the like. These are the sorts of expenses generally

charged to a fee paying client and should be reimbursed fully. The expenses incurred by the

Davis Plaintiffs are as follows:

Filing Fee (Richards) $350.00

Service of Complaint on Defendant Perry (Richards) $75.00

Service of Complaint on Defendant Andrade (Richards) $75.00

Service of Complaint on Defendant Richie (Richards) $75.00

Service of Complaint on Defendant Munisteri (Richards) $75.00

Travel Expenses (airfare) (Hebert) $718.30

Travel Expenses (Hotels) (Hebert) $939.62

Travel Expenses (airfare) (AngleStrategies) $2351.40

Travel Expenses (Hotels and meals) (AngleStrategies) $2773.09

Depositions (Hebert) $1646.96

Trial and Hearing Transcripts (Hebert) $717.90

Taxis/parking (Hebert) $281.69

Taxis/parking (AngleStrategies) $108.00

Car Rental (AngleStrategies) $357.85

Pro hac vice fee (Hebert) $25.00

Photocopying (AngleStrategies) $64.01

Research Costs (Jenner) $1,442.70

Photocopying (Jenner) $20.80

Postage/Shipping (Jenner) $58.04

Transportation (Jenner) $57.00

Printing Fees (Jenner) $3,039.10

Telephone (Jenner) $1.49

Total Non-Expert Out-of-pocket Expenses: $15,252.95


18

Expert Fees

The fee shifting provision authorizing an award of attorneys’ fees in this case specifically

authorizes the award of fees for expert costs. 42 U.S.C. § 1973l(e) (“In any action or proceeding

to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its

discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s

fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs.”).

Here, the Davis Plaintiffs retained only one expert witness (Dr. Allan Lichtman), who

prepared written report and testified at trial. Dr. Lichtman’s report and testimony at trial

addressed specifically the issue of racially discriminatory purpose, the impact of the State’s

enacted 2011 state senate plan on voters in Senate District 10, and the racially polarized voting

patterns in Senate District 10. That report and testimony was important in establishing that the

State’s plan would not likely receive preclearance, which was one of the bases for this Court’s

order imposing an interim plan in 2012. The out-of pocket expert witness fees were relatively

modest, totaling $10,000. See Exhibits A and C, reflecting these expert witness payments.

Defendants cannot be heard to argue that an expert witness was not needed or that the amount of

expert fees sought here is unreasonable; after all, the State Defendants also retained an expert

witness (Dr. Alford) who prepared an expert witness report and testified at the trial in this case.

See State of Texas Witness, Expert and Exhibit List of Oct. 20, 2011 (ECF No. 39); Tr.

Transcript at pp. 197-236 (February 8, 2012).

In sum, the Davis Plaintiffs seek reimbursement for associated expenses in this case in

the amount of $25,252.95,11

an amount that encompasses all “costs” as defined by 28 U.S.C.

11

This total amount of expenses ($25,252.95) reflects out-of pocket expenses incurred by Plaintiffs’ counsel to

successfully litigate this case. See Ex. A (Hebert Decl.) and Ex. C (Out-of-Pocket Expenses Incurred by J. Gerald

Hebert = $14,329.47); Ex. D (Out-of-Pocket Expenses of AngleStrategies = $5,654.35); Ex. F (Richards Decl.) (Out

of pocket expenses = $650.00); and Ex. F (Smith Decl.)(Out-of-pocket expenses of Jenner & Block = $4619.13).


19

§ 1920, Fed. R. Civ. P. 54(d), and Local Rule 7(j), as well as other disbursements that were

billed to and paid by Davis Plaintiffs as a component of attorneys’ fees. See Ex. A (Hebert

Decl.) at ¶ 14; Ex. C (Hebert Time and Out of Pocket Expense Records); Ex. D (AngleStrategies

Time and Out of Pocket Expense Records); Ex. F (Richards Decl.); and Exhibit G (Smith Decl.).

Non-Expert Witness Fees: $15,252.95

Expert Witness Fees: $10,000.00

Total Expenses: $25,252.95

Adding attorneys’ fees and expenses, the Davis Plaintiffs request a total compensation of

$616,813.45, as follows:

Total Attorneys’ and Legal Support Staff Fees $591,560.50

Total Expenses: $25,252.95

Total Fees and Expenses: $616,813.45

The fees and expenses are substantiated by the Declarations of counsel and other documentary

exhibits attached to this Brief, which are incorporated by reference.

CONCLUSION

The attorneys’ fees sought here are reasonable and not excessive. They are consistent

with those rates normally charged by the Plaintiffs’ attorneys to their fee-paying clients for the

type of work in question, and they are within the prevailing market rate charged by attorneys of

comparable experience and expertise. Likewise, the expenses and costs sought here are due to

be recovered as they were necessarily incurred during the course of the lawsuit as out-of-pocket

expenses, and are of the same type as those ordinarily charged to clients by counsel.

Accordingly, for the reasons set forth above, this Court should award Plaintiffs the

attorneys’ fees, litigation expenses, and costs as requested.


20

Respectfully submitted,

DAVID RICHARDS

State Bar No. 16846000

Richards, Rodriquez and Skeith, LLP

816 Congress Avenue, Suite 1200

Austin, TX 78701

Tel (512) 476-0005

Fax (512) 476-1513

/s/ J. Gerald Hebert

J. GERALD HEBERT

191 Somervelle Street, #405

Alexandria, VA 22304

Tel. (703) 628-4673

Admitted pro hac vice

PAUL M. SMITH

JESSICA RING AMUNSON

JENNER & BLOCK LLP

1099 New York Ave., NW

Suite 900

Washington, DC 20001-4412

Tel (202) 639-6023

Fax (202) 661-4993

Admitted pro hac vice

Attorneys for Plaintiffs

Dated: September 24, 2013

CERTIFICATE OF SERVICE

I hereby certify that on the 24th day of September, 2013, I served a copy of the foregoing

Davis Plaintiffs’ Motion for Interim Fees, Expenses and Costs, the foregoing Brief in support

thereof, and attached Exhibits A-L on counsel who are registered to receive NEFs through the

CM/ECF system. All attorneys who have not yet registered to receive NEFs have been served via

first-class mail, postage prepaid.

/s/ J. Gerald Hebert

J. GERALD HEBERT


21

EXHIBITS TO DAVIS PLAINTIFFS’ MOTION AND BRIEF FOR

AWARD OF ATTORNEYS’ FEES AND EXPENSES

EXHIBIT A—Declaration of J. GERALD HEBERT

EXHIBIT B—Listing of Voting/Election Cases Handled by HEBERT

EXHIBIT C—Time and Expense Records of J. GERALD HEBERT

Exhibit C-1—Expense Receipts of J. GERALD HEBERT

EXHIBIT D—Time and Expenses Records of ANGLESTRATEGIES

EXHIBIT E—Updated Laffey Matrix on Attorneys’ Fees

EXHIBIT F—Declaration of DAVID R. RICHARDS

EXHIBIT G—Declaration of PAUL M. SMITH

EXHIBIT H—Declaration of BRUCE V. SPIVA

EXHIBIT I— Declaration of STEPHEN B. PERSHING

EXHIBIT J—Federal Judicial Center, Case Weighting Study

EXHIBIT K—Declaration of PAT PANGBURN

EXHIBIT L—Declaration of ROY BROOKS


in the united states district court for the …case 5:11-cv-00788-olg-jes-xr document 193-1 filed...

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