Supplemental Brief — Arriola v. Harville

-g Supreme Court, U.S,

“S EILCED

SEP 4 1966

n,\ | | JOSEPH F. SPANIOL, JR.

NO. 85-1954 ~ ee

7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER “ERM, 1986

ALFREDO R. ARRIOLA, MIGUEL V. RAMIREZ,

JR., RICARDO TREVINO, JR.,

Petitioners

V.

T. L. HARVILLE, LUCILLA DE LEON, C. W.

“DINKY” PRICE, J. B. FREILEY, W. M.

LAUGHLIN, ARNOLDO GONZALEZ, CHARLES

HARLESS, ZARAGOSA GARCIA, JR., J. W.

SUTHERLAND, JIM WELLS COUNTY, TEXAS,

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITIONERS’ SUPPLEMENTAL BRIEF

* JOAQUIN G. AVILA ANTONIA HERNANDEZ

One Warm Springs Blvd. NORMA V. CANTU

Professional Center JUDITH A, SANDERS-CASTRO

200 Brown Road, Suite 114 JOSE ROBERTO JUAREZ, JR.

Fremont, CA 94539 ALBERT H, KAUFFMAN

(415) 651-7724 JOSE GARZA

Mexican American Legal

Defense & Educational Rud

MORRIS J. BALLER 5i7 Petroleum Commerce Bldg.

Marron, Reid and Sheehy 201 N. St. Mary's Street

601 California Street San Antonio, Texas 78205

Suite 1200 (512) 224-5476

San Francisco, CA 94108

*Counsel of Record

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

Cases Page

Alfred R. Arriola v. T. L. Harville,

781 F.2d 506

EEE we ancinasecvosecier passim

Delaware Valley Citizens v.

Pennsylvania

581 F.Supp. 1412

I ED pak bs des cce ee cececes 5,16

Delaware Valley Citizens v.

Pennsylvania

F. Cee Meats BOO) oss 6

Pennsylvania v. Delaware Valley

Citizens Council for Clean

Air, wae. , £00 5. UC.

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Webb v. Board of Fogeseton of

et Count , LOS

C 1923 85 | Ea 33 233

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FEDERAL STATUTES

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FEDERAL RULES

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iii

NO. 85-1954

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

ALFREDO R. ARRIOLA, MIGUEL V. RAMIREZ,

JR., RICARDO TREVINO, JR.,

Petitioners,

V.

T. L. HARVILLE, LUCILLA DE LEON, C. W.

"DINKY" PRICE, J. B. FREILEY, W. M.

LAUGHLIN, ARNOLDO GONZALEZ, CHARLES

HARLESS, ZARAGOSA GARCIA, JR., J. W.

SUTHERLAND, JIM WELLS COUNTY, TEXAS,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITIONERS’ SUPPLEMENTAL BRIEF

STATEMENT OF THE CASE

Petitioners are submitting this

Supplemental Brief pursuant to United

States Supreme Court Rule 22.6 to call to

the attention of this Court a new deci-

sion which was not available when the

Petition for Certiorari was filed on May

28, 1986. The new decision is Pennsyl-

vania vv. Delaware Valley Citizen's

Council for Clean Air, U.S. , 106

S.Ct. 3088 (1986) (hereinafter cited as

Delaware Valley) which was announced by

this Court on July 2, 1986.

1. Status of Proceedings

The instant Petition for Certiorari

involves a successful enforcement

pursuant to Section 5 of the Voting

Rights Act, 42 U.S.C. §1973c, in Jim

Wells County, Texas. The petitioners

successfully prevented respondents from

2

continuing to implement a discriminatory

redistricting plan for the County's

Commissioners’ Precincts. In conjunction

with the legal action petitioners

actively participated in ancillary

preclearance proceedings before the

United States Attorney General. As a

result of these activities, Petitioners

secured their litigation objectives of

enactment of a non-discriminatory re-

districting plan for the Commissioners’

Precincts, Petitioners seek the recovery

of attorneys’ fees for their work in this

ancillary administrative proceeding.

Although the District Court (Pet. App. at

38a) denied such an award, and the Court

of Appeals for the Fifth Circuit (Pet.

App. at la) affirmed that denial, this

Court's decision in Delaware Valley

clearly demonstrates that these lower

court decisions were in error.

3

2. Summary of New Case

Delaware Valley involved an action

filed by the Delaware Valley Citizens'

Council for Clean Air to require the

Commonwealth of Pennsylvania to comply

with the vehicle emission inspection and

maintenance program as mandated by the

Clean Air Act. 42 U.S.C. §7410. Subse-

quently, the parties entered into a

consent decree. The consent’ decree

required the Pennsylvania Department of

Transportation to seek legislation which

would meet the requirement cf the Clean

Air Act. Absent such legislation, the

Department of Transportation was required

to promulgate regulations which would

meet the terms of the decree.

The Department of Transportation was

not successful im securing the necessary

legislation. Subsequently, the

Department published proposed regula-.

tions. Delaware Valley submitted

comments on the regulations. Delaware

Valley also participated in hearings

before the Environmental Protection

Agency where the Commonwealth unsuccess-

fully sought to limit the geographical

scope of the inspection and maintenance

program required by the consent decree.

Although Delaware Valley's admin-

istrative advocacy services were rendered

after the litigation had terminated with

a final decree and were not conducted

within the confines of the courtroom, the

District Court awarded fees for this

administrative work pursuant to_- the

attorneys’ fees provision of the Clean

Air Act, 42 U.S.C. §7604 (d). Delaware

Valley Citizens v. Pennsylvania, 581

F.Supp. 1412 (E.D.Pa. 1984). The Court

of Appeals for the Third Circuit affirmed

5

the award of fees for this administrative

advocacy. Delaware Valley Citizens v.

Pennsylvania, 762 F.2d 272, 277 (3rd Cir.

1985).

This Court affirmed the award of

attorneys' fees for services rendered

during these ancillary administrative

proceedings. The Court rejected the

argument that the plain language of the

attorneys' fees provision, which specif-

ically refers to court proceedings and

litigation costs, precluded recovery of a

fee award for such work. —___ U.S. at

__, 106 S.Ct. at 3094. In rejecting

these arguments, the Court noted that the

administrative work " was as necessary to

the attainment of adequate relief for

their client as was all of their earlier

work in the courtroom which’ secured

Delaware Valley's initial success in

obtaining the consent decree." __ U.S.

6

at , 106 S.Ct. at 3094. Moreover, the.

absence of éj traditional judicial

proceeding was not dispositive: "[A]Jnd

enforcement of the decree, whether in the

courtroom before a judge, or in front of

a regulatory agency with power to modify

the substance of the program ordered by

the court, involved the type of work

which is properly compensable as a cost

of iéicieetion ««<"s U.S at

106 S.ct. at 3095. 1

L In addition, the termination of

the litigation also did not preclude the

award for attorney's fees for services

rendered in ancillary administrative

proceedings. The Court specifically

referred to the precedent established

pursuant to the Civil Rights Attorneys'

Fees Award Act, 42 ee §1988,

permitting the award of attorney's fees

for the post-judgment monitoring of a

consent decree. U.S. at _, 106

$.Ct. at 3095.

|

The Court also referred to the.

explicit congressional policy supporting

the attorney's fees statutes which sought

to “insure that private citizens have a

meaningful opportunity to vindicate their

rights protected by the Civil Rights

Laws." U.S. at , 806 §.Ce. at

3095. This Congressional policy also

recognized the importance of private

parties to the effective enforcement of

these Civil Rights statutes and _ the

necessity of attorneys' fees awards to

permit such private enforcement:

'The effective enforcement

of Federal Civil rights statutes

depends largely on the efforts

of private citizens,' and unless

reasonable attorney's fees could

be awarded for bringing these

actions, Congress found that

many legitimate claims would not

be redressed.

u.5,. st » 206 8.6. 66 FORs.

(citations omitted)

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The key concern in Delaware Valley |

was permitting constituents of Delaware

Valley to have a meaningful opportunity

to vindicate their rights protected by

the Clean Air Act. Vindicating these

rights in Delaware Valley required the

rendition of advocacy services in ancil-

lary administrative proceedings which

were related to the litigation. Without

such administrative participation,

constituents of Delaware Valley would not

have been able to protect their rights,

for the consent decree did not finally

secure those rights, but merely initiated

a process by which those rights could be

attained. Awarding attorney's fees for

such work permits plaintiffs such as

Delaware Valley to secure competent

counsel who can represent their interests

in such critical administrative proceed-

ings where, quite often, decisions are

9

ae

made which determine whether such plain-

tiffs’ litigation victory is Pyrrhic or

final.

This Court has previously held that

as long as the work performed is useful

and of the type ordinarily necessary to

secure the final relief desired from the

litigation, such work before optional

administrative proceedings is compensa-

ble. Webb v. Board of Education of Dyer

County, U.S. , 105 §&.Ct. 1923

(1985). In recognition of the holding in

Webb, the Court concluded in Delaware

Valley, "We agree that participation in

these administrative proceedings was

crucial to the vindication of Delaware

Valley's rights under the consent decree

and find that compensation for these

activities was entirely proper and well

within the ‘zone of discretion’ afforded

the District Court." ae ee

10

106 S.Ct. at 3096.

APPLICATION OF NEW CASE

TO ARRIOLA

The lower court decisions in the

instant case are inconsistent with this

Court's ruling in Delaware Valley. The

principle established in Delaware Valley

authorizes the award of attorney's fees

for services rendered in an ancillary

administrative proceeding related to an

enforcement action under Section 5 of the

Voting Rights Act, especially where such

services were both useful and of a type

ordinarily necessary to secure the final

objective of the litigation.

There are many similarities between

Delaware Valley and Arriola. In both

cases, plaintiffs sought to vindicate

their rights protected by a federal

statute: the Clean Air Act in Delaware

Valley and the Voting Rights Act in

11

~"

Arriola. In both cases, plaintiffs’

preliminary victory in a court action set

the stage for administrative proceedings,

which would ultimately determine whether

plaintiffs attained their remedial goals.

In both cases, had plaintiffs not

participated in the administrative

proceedings, or been unable to marshal

the resources to participate effectively

and successfully, plaintiffs' litigation

victory would have remained a hollow one,

without remedial effect.

In at least one respect Arriola

differs from Delaware Valley in a way

that makes Arriola a more compelling case

for an award of attorneys’ fees. In

Delaware Valley, the litigation had t-

erminated when the consent decree was

entered. In contrast, in Arriola the

ongoing litigation did not terminate with

the issuance of an injunction which

12

merely enjoined the continued implementa-

tion of an existing discriminatory

redistricting plan, but did not enjoin

respondents to adopt a new plan or to

remedy their past discrimination. As a

result of the injunction, before a new

redistricting plan could be implemented,

the County was required by Section 5 to

submit any proposed plan for preclear-

ance. During this preclearance process,

the District Court retained jurisdiction

and held the case in abeyance until a new

plan received the requisite approval.

Thus, in Arriola the nexus between the

court proceedings and the administrative

proceedings was even closer than in

Delaware Valley.

The basic effect of both a consent

decree, such as _ finally terminated

Delaware Valley, and a permanent injunc-

tion which retains jurisdiction, as

13

a

_—

in Arriola, is that they neither require

nor support any difference in result.

Consent decrees, court orders, voluntary

cessation of the discriminatory activity

by defendants, and participation before

ancillary administrative proceedings are

alternative mechanisms by which plain-

tiffs may accomplish the ultimate objec-

tive of their lawsuit. The key issue is

whether plaintiffs' participation in

these mechanisms resulted in securing the

relief they sought. As the two cases

illustrate, participation in administra-

tive proceedings can play a critical role

in securing the ultimate objective of the

litigation irrespective of whether the

parties entered into a consent decree.

For attorney's fees purposes, it is the

result -- not the nature of the proceed-

ings in which relief was obtained, or the

timing of the court order -- which

14

justifies the fee award.

The Court also noted in Delaware

Valley that the administrative proceeding

need not "involve 'traditional' legal

work such as examination of witnesses or

selection of jurors for trial" in order

to be compensable. — U.S. at __, 106

$.Ct. at 3094. Indeed, the Court

affirmed the award of attorney's fees for

work performed in submitting comments to

regulations proposed by the Department of

Transportation. As the District Court

noted, this award was proper, even though

anyone could have submitted comments on

2 Arriola is not a case where

Petitioners seek an award of attorney's

fees for services rendered in federal

administrative proceedings "...when there

is no connected court action in which

fees are recoverable."" Delaware Valley,

_ 8, 8 , Be Oy Oe Oe 3096,

ee. SS

15

the regulations. Delaware Valley

Citizens v. Pennsylvania, 351 F.Supp.

1412, 1423 (E.D. Pa. 1984) ("While it is

true that the opportunity to submit

comments to the proposed regulations was

available to any person, it does not

follow, as defendants contend, that

plaintiffs should not be compensated for

the time used in preparing comments.").

In Arriola, the participation in the

ancillary administrative proceeding went

beyond the forwarding of comments seeking

a change in proposed regulations.

Petitioners engaged in extensive adminis-

trative advocacy as well as negotiations

with County officials during the remedial

phase of this lawsuit. The administra-

tive advocacy consisted of extensive

comments urging the disapproval of the

submitted redistricting plans. In

addition, there were telephone

16

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earn 37 oleh. = 7

= An . - y= —— oy

©

conferences with staff from the Attorney

General's office. These telephone

conferences provided additional informa-

tion to assist the Attorney General in

evaluating the submitted redistricting

plans. Most importantly, this adminis-

trative advocacy was successful. See

Petition for Writ of Certiorari, at

10-17.

Underlying both the Voting Rights

Act's fees provision and that of the

Clean Air Act is an explicit congres-

sional policy designed to enable private

parties to have a meaningful opportunity

to protect their rights as provided by

federal law. See, e.g., Petition for

Writ of Certiorari, at 24-31; and

Delaware Valley, U. S. at , 106

§.ct. at 3096. In both’ statutory

schemes, this vigorous enforcement of

statutory rights is encouraged through

17

the awards of attorney's fees.

Therefore, the same Congressional policy

which led the Court to allow Delaware

Valley a fee award for participation in

administrative proceedings which grew out

of prior litigation also compels such an

award here.

CONCLUSION

In view of this Court's’ recent

decision in Delaware Valley and _ the

arguments presented in this brief and the

petition for a writ of certiorari, the

writ should issue to review the judgment

and opinion of the Fifth Circuit. 3

Respectfully submitted,

3 Alternatively, the Court could

vacate the judgment and remand this case

for reconsideration in light of Delaware

Valley.

18

*Counsel of Record

ANTONIA HERNANDEZ

NORMA V. CANTU

JUDITH A. SANDERS-CASTRO

JOSE ROBERTO JUAREZ, JR.

ALBERT H. KAUFFMAN

JOSE GARZA

Mexican American Legal Defense

and Educational Fund

201 N. St. Mary's Street

517 Petroleum Commerce Building

San Antonio, Texas 78205

JOAQUIN G. AVILA*

One Warm Springs

Professional Center

200 Brown Rd., Suite 114

Fremont, California 94539

MORRIS J. BALLER

MARRON, REID, & SHEEHY

601 California St.

Suite 1200

San Francisco, California 94108

19