Petition for Writ of Certiorari — Statewide Reapportionment Advisory Committee v. Beasley

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No. 961201 JAN 28 1997

In ThegfFice OF Ine CLERK

Supreme Court of the United States

October Term, 1996

¢

STATEWIDE REAPPORTIONMENT ADVISORY

COMMITTEE; WILLIAM GIBSON, Doctor; FREDERICK

CALHOUN JAMES, Bishop; HERBERT WILLIAMS,

Reverend; WILLIE B. OWENS; SOUTH CAROLINA

CONFERENCE OF THE NAACP BRANCHES; MICHAEL G.

BURTON, as Executive Director on behalf of the Republican

Party; WILLIAM P. COLLINS, HI; EARLY COPELAND;

WILLIAM PATRICK FLACK; FRANK E. GIBSON, III;

NANCY D. HAWK; and GUS ROBERTS,

versus Petitioners,

DAVID M. BEASLEY, in his official capacity as Governor of

South Carolina; DAVID H. WILKINS, in his official capacity

as Speaker of the South Carolina House of Representatives,

and THE SOUTH CAROLINA SENATE,

Respondents.

4

Petition For A Writ Of Certiorari To The United States

Court Of Appeals For The Fourth Circuit

4

PETITION FOR WRIT OF CERTIORARI

¢

LAUGHLIN McCDoNALD

(Counsel of Record)

Neit BRADLEY

Mauna ZAKI

CRISTINA CORREIA

American Civil Liberties

Union Foundation, Inc.

44 Forsyth Street, N.W.

Suite 202

Atlanta, Georgia 30303

(404) 523-2721

DENNIS COURTLAND Hayes

Witur ABRAMS

NAACP Speciat CONTRIBUTION FUND

4805 Mount Hope Drive

Baltimore, Maryland 21215-3297

(301) 358-8900

JOHN Roy Harper II

P.O. Box 843

Columbia, South Carolina 29202

(803) 771-4723

Counsel for SRAC Petitioners

THOMAS R. GOTTSHALL

SINKLER & Boyp, P.A.

1426 Main Street

Suite 1200

Columbia, South Carolina 29201

(803) 779-3080

Counsel for Republican Party

Petitioners

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ea ”

QUESTIONS PRESENTED FOR REVIEW

1. Whether the court of appeals erred in rejecting, in

conflict with the decisions of every other circuit, “cata-

lyst” theory of causation in determining prevailing party

status under 42 U.S.C. §§ 1973l(e) and 1988, and in ruling

that petitioners were not entitled to a fee award because

they did not secure “an enforceable judgment” against

the defendants?

2. Whether the court of appeals erred in denying

fees to petitioners, who secured an enforceable judgment

against the defendants on their claim that special senate

elections were subject to Section 5 of the Voting Rights

Act, on the ground that the judgment was not “material?”

LIST OF ALL PARTIES BELOW

The caption contains the names of all parties to the

proceedings in the court of appeals.

iii

TABLE OF CONTENTS

Page

Questions Presented For Review................+.- i

Te ee ii

SOO SER EES EL TET TET ORT EEE LEE as ae

NOI oo 5 ape vse ce vedcceseveeseseeees iv

CUTTS TEIOW «220. ccc cee teeter e sv ncvneones 1

Eee 1

Statutory Provisions Involved..................++55 1

ET ERT ERLE EEE 2

A. The Decision of the Court of Appeals ....... 7

Reasons for Granting the Writ.................+55. 9

A. There Is a Conflict Among the Circuits...... 9

B. The Opinion Below Is in Conflict with the Deci-

sions of this Court for Determining Prevailing

ok ee eee ae |.

C. Petitioners’ Success on Their Section 5 Claim

I IE, oo ccc sessesrcvessevens l

ie a re 24

PIs noc ce cise ccs serene cscecsscccceccnes App. 1

A. Opinion of the Court of Appeals........... App. 1

BS Onder of the District Court................. App. 11

iv

TABLE OF AUTHORITIES

Page

CASES:

Allen v. State Board of Elections, 393 U.S. 544

COMO 6 50k 5s eek salads ia ce ee ke ee eee 20

American Council of the Blind, Inc. v. Romer, 992

Pee ee CHE RAR BOO is sno scx kere a bane cesuaes 14

Army & Airforce Exchange Service v. Sheehan,

Cae Rha. Fae ORE sk oes Fearon eee A a aeae eee 18

Arriola v. Harville, 781 F.2d 506 (5th Cir. 1986) ..... 23

Baumgartner v. Harrisburg Housing Authority, 21

Piaek en Ce EE Pes eke eo ee ewe van eeees oe eee. 13

Beard v. Teska, 31 F.3d 942 (10th Cir. 1994) ......... 14

Brooks v. Georgia State Board of Elections, 997

Wie G7 Tele Gi. Bi os ek eines ase verdes cs 23

Brown v. Local 58, IBEW, 76 F.3d 762 (6th Cir.

BE so sa 0s wh wh ow eee ae er ook, 14

Burton v. Sheheen, 793 F.Supp. 1329 (D.S.C. 1992) ...3, 4

Campbell v. Theodore, No. 92-219 (S.Ct.)............. >

Campbell v. Theodore, 508 U.S. 968 (1993) ........... 3

Chisom v. Roemer, 501 U.S. 380 (1991).............. 20

Citizens Against Tax Waste v. Westerville City

School, 985 F.2d 255 (6th Cir. 1993)............... 14

Craig v. Gregg County Texas, 988 F.2d 18 (5th Cir.

WOU « 5.ks 400 ora e ona eaeeens eee ower eres 13

Dawson v. Patrick, 600 F.2d 70 (7th Cir. 1979)....... 11

DeMier v. Gondles, 676 F.2d 92 (4th Cir. 1982)...... 12

TABLE OF AUTHORITIES — Continued

Page

Farrar v. Hobby, 115 S.Ct. 566 (1992)............ passim

Fields v. City of Tarpon Springs, 721 F.2d 318 (11th

Cis WO eae viecn cekens es eeutete ieee 9, 11

Firestone Tire & Rubber Co. v. Risjord, 449 U.S.

DO TA iciwik sco eae caenceeee arenes eee 15

Gerena-Valentin v. Koch, 739 F.2d 755 (2d Cir.

CO iis vis OG ee ee ee ee 10

Heath v. Brown, 858 F.2d 1092 (5th Cir. 1988)....... 10

Hensley v. Eckerhart, 461 U.S. 424 (1983).. 9, 16, 17, 18

Hewitt v. Helms, 482 U.S. 755 (1987)............. 12, 17

Kilgour v. City of Pasadena, 53 F.3d 1007 (9th Cir.

FORO so .vxs ces iaee hs Be rahe eh eet ee eel eee 14

Lads Trucking Co. v. Board of Trustees, 777 F.2d

1S7h Gr Re PEE). 6s hen eee 11

Little Rock School District v. Pulaski County Spe-

cial School District, No. 1, 17 F.3d 260 (8th Cir.

BOs occ iee cer bus kses ews cea eee ree NS aera ne 14

Luethje v. Peavine School District, 872 F.2d 352

4. ke eee rrr e ry rere gee een 11

Maher v. Gagne, 448 U.S. 122 (1980)............. 12, 13

Maloney v. City of Marietta, 822 F.2d 1023 (11th

CUR SOE) car kn scaceseneetwekneees erase eee eon 22

McElroy v. United States, 455 U.S. 642 (1982) ....... 15

Morse v. Republican Party of Virginia, 116 S.Ct.

9) | reer er peer ore errr een 20

Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978)..... 9

vi

TABLE OF AUTHORITIES —- Continued

Page

Newman v. Piggie Park Enterprises, Inc., 390 U.S.

OOS CYIOG) ono vccctnvsisntecertes suet 22

Paris v. HUD, 988 F.2d 236 (1st Cir. 1993)........... 13

Perket v. Secretary of Health & Human Services,

P0S Baa 129 (60h (ie PROG). oc ce accewccpsecueseens 10

Public Citizen Health Research Group v. Young,

wor FAG S46 GC. Cit Bois ccceeseee ee 11

Robinson v. Alabama State Department of Educa-

tion, 727 F.Supp. 1422 (M.D.Ala. 1989)............ 23

S-1 and S-2 v. State Board of Education of North

Carolina, 21 F.3d 49 (4th Cir. 1994) ....... i, 5 ee

S-1 and S-2 v. State Board of Education of North

Carolina, 6 F.3d 160 (4th Cir. 1993) ................ 7

Smith v. University of North Carolina, 632 F.2d

316 (4th Cit, 19GG} «0.0005 0540 bd5e 005 ae eee 11

South Carolina v. Katzenbach, 383 U.S. 301 (1966)

UPETET TET TETITTLETeTTTETT TT 19, 22, 23

SRAC v. Theodore, No. 92-155 (S.Ct.) ..............45. 5

SRAC v. Theodore, 508 U.S. 968 (1993)............. 3, 5

Texas State Teachers Association v. Garland Inde-

pendent School District, 489 U.S. 782 (1989)

Kb e eR Ne Oe re th06 0040486686 nbaaeeane. 16, 17, 18, 23

Truax v. Bowen, 842 F.2d 995 (8th Cir. 1988) ........ 11

United States v. Gaddis, 424 U.S. 544 (1976)......... 15

Vasquez v. Hillery, 474 U.S. 254 (1986).............. 13

Wheeler v. Towanda Area School District, 950 F.2d

026 (3a Car. 1991) «0 ccoscvkstantascasetesr een 10

Zinn By Blankenship v. Shalala, 35 F.3d 273 (7th

CAE. TODE) oc ccncccccccccsavsnceumetyeeneeneereune 14

Vii

TABLE OF AUTHORITIES —- Continued

Page

STATUTES:

eo Se a ee er. eee wy we 1

OE Saal | ee err re rere rere rrr eee 3

42 U.S.C. § 1973, Section 2 of the Voting Rights

een CCR Ce oare 5 RES ERECTA ee

42 U.S.C. § 1973a(c), Section 3 of the Voting Rights

SE epee aL aE Se ar sn at ange 20

42 U.S.C. § 1973c, Section 5 of the Voting Rights

Se Pe Sede ee ee ee ee REE EST re NA passim

42 U.S.C. § 1973h, Section 10 of the Voting Rights

bce canes ca kaw seks 040404 0s 6b od 4e keene EECA es 20

Cae RPP OM cares ctaketinsevceuss 1, 7, 9, 16, 21

ee PE ok oo 20 0 caea se aeean a cen ks oes L,.7, 16

fame ee ae eer re err rr 5

CONGRESSIONAL REPORTS:

S.Rep. No. 295, 94th Cong., Ist Sess. (1975)

reprinted in 1975 U.S.C.C.A.N. 774 ......... 20, 21, 22

S.Rep. No. 1011, 94th Cong. (1976), reprinted in

i BR ae ce Dey eee 12

S.Rep. No. 417, 97th Cong., 2d Sess. (1982),

reprinted in 1982 U.S.C.C.A.N. 177 ........00 ee eee 21

OTHER:

Chandler Davidson & Bernard Grofman, “The

Voting Rights Act and the Second Reconstruc-

tion,” in Quiet Revolution in the South: The

Impact of the Voting Rights Act, 1965-1990 385

(Chandler Davidson & Bernard Grofman eds.,

PN ACORN Cs aSer ee Ea ORD ES Dae ene 20

OPINIONS BELOW

The October 30, 1996 opinion of the court of appeals

affirming the decision of the district court denying peti-

tioners attorney’s fees is unreported and appears in the

appendix hereto, App. 1. The December 15, 1995 order of

the district court is unreported and appears in the appen-

dix hereto, App. 11.

JURISDICTION

The opinion of the court of appeals sought to be

reviewed was entered on October 30, 1996. Jurisdiction to

review on a writ of certiorari the opinion in question is

conferred by 28 U.S.C. § 1254(1). This petition is being

filed within 90 days after entry of the opinion of the court

of appeals.

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved in this case are 42

U.S.C. § 1973l(e), which provides that:

In any action or proceeding to enforce the vot-

ing guarantees of the fourteenth or fifteenth

amendment, the court, in its discretion, may

allow the prevailing party, other than the Uniied

States, a reasonable attorney’s fee as part of the

costs.

and, 42 U.S.C. § 1988, which provides that:

In any action or proceeding to enforce a provi-

sion of sections 1981, 1981la, 1982, 1983, 1985,

ee ee

and 1986 of this title, title IX of Public Law

92-318, the Religious Freedom Restoration Act

of 1993, title VI of the Civil Rights Act of 1964,

or section 13981 of this title, the court, in its

discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s

fee as part of the costs.

?

STATEMENT OF THE CASE

Petitioners appeal the denial by the court below of

attorney’s fees and costs.! The court of appeals, rejecting

the catalyst theory of causation adopted by all 11 of the i

other circuits which have considered the matter, held that

petitioners were not prevailing parties, despite the fact

that they secured both court ordered and subsequently '

legislative redistricting, because they had not secured “an

enforceable judgment.” :

The facts in this case are not in dispute. The 1990

census showed that South Carolina’s congressional and

legislative districts were malapportioned. App. 4. The

general assembly failed to pass any redistricting plans

before the 1990-91 legislative session adjourned in June,

1 Petitioners, who were the plaintiffs /appellants below, are

the Statewide Reapportionment Advisory Committee (an

unincorporated association of private individuals and

organizations in South Carolina), the South Carolina State

Conference of NAACP Branches, and several African-American

residents of the state (hereinafter collectively referred to as

“SRAC”), and the executive director of the South Carolina

Republican Party and several of its members (hereinafter

“Republican Party”).

1991. Id. The Republican Party filed its complaint on

October 4, 1991, and SRAC filed its complaint on October

31, 1991. The law suits were an effort to break the legisla-

tive impasse and insure that elections would be held in a

timely, constitutional manner. Id. Petitioners succeeded in

all of these objectives.

Both the Republican Party and SRAC alleged that the

existing congressional and legislative districts in South

Carolina violated one person, one vote and diluted

minority voting strength in violation of Section 2 of the

Voting Rights Act, 42 U.S.C. § 1973. They requested the

district court to order interim court ordered redistricting

on the grounds that the general assembly had failed to

redistrict during the 1991 legislative session, and that

there was not enough time prior to the 1992 elections for

the state to redistrict and comply with the preclearance

provisions of Section 5 of the Voting Rights Act, 42 U.S.C.

§ 1973c. A three-judge court was constituted to hear the

complaints pursuant to 28 U.S.C. § 2284, and the cases

were consolidated for trial. App. 4.

The general assembly reconvened on January 14,

1992 and adopted redistricting plans for the senate and

house. The governor vetoed the plans on January 29, 1992

on the ground that they did not comply with Section 2,

and the vetoes were sustained. The senate and house

passed separate bills for congressional redistricting but

no plan was enacted by the general assembly. App. 4;

Burton v. Sheheen, 793 F.Supp. 1329, 1339 (D.S.C. 1992)

(prior decision of the district court), vacated, SRAC v.

Theodore, 508 U.S. 968 (1993), and Campbell v. Theodore, 508

U.S. 968 (1993). After the governor’s veto was sustained,

the court declared that the legislative process was dead-

locked. App. 4. These cases were tried beginning in Feb-

ruary, 1992. During the three week trial the parties

submitted evidence probative of minority vote dilution

and various remedial redistricting plans. App. 5.2

On May 1, 1992 the court issued an order concluding

that none of the plans proposed by the parties fully

satisfied constitutional and statutory mandates, and

directed that court ordered legislative and congressional

plans “shall be the lawful election districts for each of

those bodies for the general elections scheduled for 1992,

and for all subsequent elections until redistricting plans

for those bodies are lawfully enacted by the South Caro-

lina General Assembly.” Burton v. Sheheen, 793 F.Supp. at

1369; App. 5.3 The court’s plans, which were put into

effect as a result of the litigation initiated by petitioners,

were used by the state for the 1992 elections for the

senate, house, and Congress. Those elected, with the

2 At the senate phase of the trial, the Republican Party,

SRAC, the senate, the lieutenant governor, and the governor

presented plans for consideration by the court. Burton v.

Sheheen, 793 F.Supp. at 1362. At the house phase of the trial, the

Republican Party, SRAC, the house, the speaker of the house,

and the governor presented proposed remedial plans. Id. at 1364

and n.72. At the congressional phase of trial the state defendants

agreed with petitioners that a majority black congressional

district could and should be drawn. Id. at 1368.

3 The court’s plan created ten majority black senate

districts, compared to seven in the pre-existing plan, 23 majority

black house districts, compared to 20 in the pre-existing plan,

and, for the first time since Reconstruction, a majority black

congressional district. Burton v. Sheheen, 793 F.Supp. at 1362,

1364 and n.72, and 1368.

exception of the senator from Senate District One, served

out their full terms.

SRAC appealed the decision of the district court. It

contended that the three judge court had not properly

applied Section 2 in implementing its court ordered

plans. SRAC v. Theodore, No. 92-155 (S.Ct.). The governor

subsequently filed a similar appeal. Campbell v. Theodore,

No. 92-219 (S.Ct.).

This Court vacated and remanded for “further con-

sideration in light of the position presented by the Solici-

tor General in his brief for the United States filed May 7,

1993.” SRAC v. Theodore, 508 U.S. at 968. The Solicitor

General’s position was that the district court erred in

failing to conduct a full Section 2 review of its plans

“before imposing those plans for use in future elections.”

SRAC v. Theodore, No. 92-155, Brief for the United States

as Amicus Curiae, p. 18. The Solicitor General, acknow]l-

edging the electoral time constraints the district court

faced, did not question the court’s decision “to impose its

plans in their current form for purposes of the 1992

elections.” Id.

On remand, the district court provided the state an

opportunity to enact legislative redistricting plans. App.

5. The general assembly enacted a new plan for the house

in February, 1994 which drew heavily upon the court

ordered plan. App. 10. Following an initial objection and

subsequent modification, the plan was precleared by the

Attorney General under Section 5 on May 31, 1994. App.

6. The legislative plan for the house increased the number

of majority black districts compared to the court ordered

plan from 23 to 31. S.C. Act 415, May 19, 1994. Neither the

Republican party nor SRAC challenged the precleared

house plan. On March 28, 1994 the general assembly

passed a new congressional plan which made only slight

changes in the court ordered plan and retained a majority

black district. The plan was precleared by the Attorney

General on April 28, 1994. App. 6, 14. Neither SRAC nor

the Republican Party challenged the precleared congres-

sional: plan.

The 1994 elections for the house and Congress were

held under the legislatively enacted plans. The next regu-

lar election for the senate was scheduled for 1996.

In July, 1994, the senate moved the court to allow the

state to hold a special election to fill a vacancy in Senate

District One using the lines in the court ordered plan.

SRAC and the Republican Party opposed the motion on

the grounds that the state’s decision to conduct the spe-

cial election using the court ordered lines was a legisla-

tive decision subject to preclearance under Section 5. The

district court agreed and ruled that the proposed special

election plan “must be submitted for preclearance under

Section 5.” Order, August 22, 1994, shp op. at 12; App.

5-6. The state made a submission which was approved on

December 12, 1994.

In May, 1995 the state enacted a legislative plan for

the senate which was based substantially on the court

ordered plan. App. 10. The plan was submitted to the

Attorney General and was precleared. App. 6. The legis-

lative plan for the senate increased the number of-major-

ity black districts compared to the court ordered plan

from ten to 11. S. 9, Ratification No. 667 (1995). Neither

ernment

the Republican party nor SRAC opposed the preclez‘zed

senate plan.

SRAC and the Republican Party filed separate

motions for costs and fees as prevailing parties pursuant

to 42 U.S.C. §§ 1973l(e) and 1988. The motions were

denied by the district court and the denial was affirmed

per curiam by the court of appeals. App. 8.

A. The Decision of the Court of Appeals.

The court of appeals, relying upon S-1 and S-2 v. State

Board of Education of North Carolina, 21 F.3d 49, 51 (4th Cir.

1994) (en banc), rejected “’catalyst’ analysis of causation in

determining prevailing party status,” and held that peti-

tioners were not prevailing parties because they “were

not entitled to enforce any judgment against the defen-

dants.” App. 7-8. According to the court of appeals, “nei-

ther the district court’s vacated judgment, nor the

Supreme Court’s decision to remand to the district court

for further consideration in light of the Solicitor General’s

brief constitutes an enforceable judgment against the

defendants.” App. 8.4

# In S-1 and S-2, 21 F.3d at 51, the en banc court adopted the

dissenting panel opinion of Judge Wilkinson in S-1 and S-2, 6

F.3d 160, 172 (4th Cir. 1993), in which he interpreted Farrar v.

Hobby, 113 S.Ct. 566 (1992), as rejecting the catalyst theory of

prevailing party status. Six members of the en banc court

adopted the panel majority opinion, which noted that the Court

in Farrar “never mentioned the catalyst theory, and the passage

upon which the State relies occurs, as dicta, in a general

discussion of ‘prevailing party’ status.” 6 F.3d at 167.

Although petitioners secured an enforceable judg-

ment against the defendants on their claim that special

senate elections were required to be precleared under

Section 5, the court of appeals denied a fee award for that

portion of the litigation on the ground that petitioners’

success “does not represent a ‘material alteration in the

relationship between the parties.’” App. 8.

In a concurring opinion, Judge Motz acknowledged

that petitioners were “the ‘catalyst’ ” for the action taken

by the district court and subsequently the legislature.

App. 10.

SRAC and the Republican Party advance the

classic ‘but for’ scenario: had it not been for the

filing of their complaints in the district court,

the court would not have intervened in the reap-

portionment process. Without such intervention,

the South Carolina General Assembly would not

have adopted a scheme that drew heavily from

that judicially-crafted plan.

Id. judge Motz joined the judgment because she was

obligated to follow S-1 and S-2. App. 9 (“[n]Jo panel can

refuse to follow a circuit precedent . . . established by the

entire court sitting en banc”). She expressed doubt, how-

ever, that Farrar v. Hobby, 113 S.Ct. 566 (1992), required

the same outcome, noting that the Fourth Circuit’s “con-

clusion that Farrar dicta eviscerated the catalyst analysis

was contrary to the view of every other circuit to address

the question,” and that “[i]n the three years since the

issuance of S-1 and S-2 no circuit has followed our hold-

ing.” App. 10.

—

REASONS FOR GRANTING THE WRIT

The petition for writ of certiorari should be granted

because the decision of the Court of Appeals for the

Fourth Circuit for which review is sought is squarely and

irreconcilably in conflict with the decisions of ali 11 of the

other circuits which have addressed the issue of whether

catalyst theory of causation is sufficient to support an

award of attorney’s fees under 42 U.S.C. §§ 1973l(e) and

1988.5

The opinion below is also contrary to the decisions of

this Court for determining prevailing party status.

A. There Is a Conflict Among the Circuits.

Catalyst theory justifying an award of fees “requires

showing that the lawsuit is a causal link that prompted

some remedial action.” Fields v. City of Tarpon Springs, 721

F.2d 318, 321 (11th Cir. 1983). See also Nadeau v. Helgemoe,

981 F.2d 275, 280 (1st Cir. 1978) (“[t]he key issue is the

provocative role of the plaintiff’s lawsuit”). Only the

Fourth Circuit has rejected the catalyst theory.

In interpreting the fee statutes, catalyst theory has

been applied by the following circuits:

First Circuit Nadeau v. Helgemoe, 581 F.2d

at 279 (“when plaintiff’s law-

suit acts as a ‘catalyst’ in

prompting defendants to take

action to meet plaintiff's

> In Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983), the

Court indicated that the standards for awarding fees under the

two statutes are generally the same.

10

claims, attorney’s fees are

justified despite the lack of

judicial involvement in the

result”).

Second Circuit Gerena-Valentin v. Koch, 739

F.2d 755, 758-59 (2d Cir. 1984)

(plaintiffs may recover where

the litigation was “a cata-

lytic . . . factor” in obtaining

relief).

Third Circuit Wheeler v. Towanda Area School

District, 950 F.2d 128, 132 (3d

Cir. 1991) (“causation can be

established through a ‘cata-

lyst’ theory, where even

though the litigation did not

result in a favorable judg-

ment, the pressure of the

lawsuit was a material con-

tributing factor in bringing

about extra judicial relief”).

Fifth Circuit Heath v. Brown, 858 F.2d 1092,

1093 (Sth Cir. 1988) (plaintiffs

may recover where the litiga-

tion was a “significant cata-

lyst in the abandonment of a

policy which had been chal-

lenged as unconstitutional”).

Sixth Circuit Perket v. Secretary of Health &

Human Services, 905 F.2d 129,

132 (6th Cir. 1990) (plaintiffs

are prevailing parties who

were a “catalyst” in prompt-

ing defendants to take

action).

Ere venoemnemerneee

11

Seventh Circuit Dawson v. Patrick, 600 F.2d 70,

79 (7th Cir. 1979) (applying

“catalyst” analysis).

Eighth Circuit Truax v. Bowen, 842 F.2d 995,

997 (8th Cir. 1988) (approving

“the catalyst approach”).

Ninth Circuit Lads Trucking Co. v. Board of

Trustees, 777 F.2d 1371, 1375

(9th Cir. 1985) (fees may be

awarded “even though there

is no judgment on the

merits”).

Tenth Circuit Luethje v. Peavine School Dis-

trict, 872 F.2d 352, 354 (10th

Cir. 1989) (“it is enough [for a

fee award] that plaintiff’s

actions were a significant cat-

alyst or a substantial factor in

causing defendants to act”).

Eleventh Circuit Fields v. City of Tarpon

Springs, 721 F.2d at 321 (“[t]o

determine if a party has pre-

vailed when there is no judi-

cial relief this circuit has used

the catalyst test”).

D.C. Circuit Public Citizen Health Research

Group v. Young, 909 F.2d 546,

549 (D.C.Cir. 1990) (plaintiffs

may recover as prevailing

parties if the litigation was a

causal factor in obtaining the

relief sought).

Prior to S-1 and S-2, the Fourth Circuit itself recog-

nized and applied the catalyst rule. See, e.g., Smith v.

12

University of North Carolina, 632 F.2d 316, 347 (4th Cir.

1980) (fees are authorized where “a plaintiff’s actions

were a catalyst which caused a defendant to remedy his

errant ways”); DeMier v. Gondles, 676 F.2d 92, 93 (4th Cir.

1982) (“a settlement, consent decree, or other resolution

of the underlying dispute short of formal adjudication

may still support an award of fees”).

Although the Court in Hewitt v. Helms, 482 U.S. 755,

761, 763 (1987), did not reach the catalyst theory, it recog-

nized that fees can be appropriately awarded when a

plaintiff secures some of the relief sought “despite the

absence of a formal judgment in his favor.” And in Maher

v. Gagne, 448 U.S. 122, 129 (1980), the Court held that

“[njothing in the language of § 1988 conditions the Dis-

trict Court’s power to award fees . . . on a judicial

determination that the plaintiff’s rights have been vio-

lated.” See also S.Rep. No. 1011, 94th Cong. 5 (1976),

reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (“parties may be

considered to have prevailed when they vindicate rights

through a consent judgment or without formally obtain-

ing relief”).

Farrar did not, as the court of appeals held, reject the

catalyst theory. Instead, the Court recognized that a

plaintiff could be a prevailing party under two different

circumstances. The first was where the plaintiff

“obtain{ed] an enforceable judgment against the defen-

dant.” 113 S.Ct. at 573. The second was where the plain-

tiff obtained “relief through a consent decree or

settlement.” Id. (citing Maher v. Gagne, 448 U.S. at 129).

The court of appeals improperly ignored, or considered

ee

13

redundant, the second basis for determining prevailing

party status identified by this Court.®

The circuits, moreover, have continued to apply the

catalyst rule since this Court’s decision in Farrar, fre-

quently expressly rejecting the position taken in S-1 and

S<2. off, €2.:

@°°

First Circuit Paris v. HUD, 988 F.2d 236,

241 (ist Cir. 1993) (holding

post-Farrar that plaintiffs

were prevailing parties

under the “catalyst” theory).

Third Circuit Baumgartner v. Harrisburg

Housing Authority, 21 F.3d

541, 547 (3d Cir. 1994) (“[t]he

view that the ‘catalyst the-

ory’ was sub silentio abro-

gated in Farrar is

incompatible with the

Supreme Court’s approach to

attorney’s fees under section

1988”).

Fifth Circuit Craig v. Gregg County Texas,

988 F.2d 18, 20-1 (5th Cir.

1993) (applying the catalyst

test).

6 Had the Court intended to overrule or depart from its

holding in Maher that “[nJothing in the language of § 1988

conditions the District Court’s power to award fees... ona

judicial determination that the plaintiff’s rights have been

violated,” it would surely have said so. See Vasquez v. Hillery,

474 U.S. 254, 266 (1986) (“the careful observer will discern that

any detours from the straight path of stare decisis in our past

have occurred for articulable reasons”).

14

Sixth Circuit Brown v. Local 58, IBEW, 76

F.3d 762, 772 (6th Cir. 1996)

(approving the catalyst for-

mulation); Citizens Against

Tax Waste v. Westerville City

School, 985 F.2d 255, 257-58

(6th Cir. 1993) (plaintiffs

were prevailing parties

where defendants made vol-

untary changes plaintiffs

sought by their lawsuit).

Seventh Circuit Zinn By Blankenship v. Shalala,

35 F.3d 273, 276 (7th Cir.

1994) (“plaintiffs who attain

the relief they seek through

defendants’ voluntary action

may qualify for fees by way

of the catalyst theory not-

withstanding Farrar’).

Eighth Circuit Little Rock School District v.

Pulaski County Special School

District, No. 1, 17 F.3d 260,

263 n.2 (8th Cir. 1994) (Farrar

does not affect “our forego-

ing [catalyst] analysis”).

Ninth Circuit Kilgour v. City of Pasadena, 53

F.3d 1007, 1010 (9th Cir. 1995)

(“the catalyst test survives

Farrar”).

Tenth Circuit American Council of the Blind,

Inc. v. Romer, 992 F.2d 249,

251 (10th Cir. 1993) (Farrar

does not condemn “use of

the ‘catalyst rule’ ”); Beard v.

Teska, 31 F.3d 942, 951 (10th

15

Cir. 1994) (rejecting the argu-

ment that Farrar repudiated

catalyst theory).

The conflict among the circuits here is not only pat-

ent, but as the concurring opinion of Judge Motz makes

clear, it cannot be resolved except by the action of this

Court. The petition should be granted. See McElroy v.

United States, 455 U.S. 642, 643 (1982) (certiorari granted

because of “a conflict among the Circuits on this issue of

statutory construction”); Firestone Tire & Rubber Co. v.

Risjord, 449 U.S. 368, 373 (1981) (certiorari granted “to

resolve a conflict among the Circuits”); United States v.

Gaddis, 424 U.S. 544, 547 (1976) (certiorari granted

“because of the discordant views in the Circuits regard-

ing the proper application” of prior Supreme Court deci-

sions).

B. The Opinion Below Is in Conflict with the

Decisions of this Court for Determining Pre-

vailing Party Status.

Petitioners were not only the catalyst for judicial and

legislative action, as Judge Motz found, App. 10, but their

success in this case was exceptional. They succeeded in

breaking through the legislative impasse and in invalidat-

ing the pre-existing malapportioned legislative and con-

gressional districting plans. They secured declaratory and

injunctive relief in the form of court ordered legislative

and congressional redistricting. The court ordered plans

were a substantial improvement over the pre-existing

plans and increased in each instance the number of

majority black districts. Appellants secured injunctive

16

relief insuring that legislative and congressional elections

were held in a timely manner in 1992.

The SRAC petitioners prevailed in their appeal to the

Supreme Court and secured an order vacating the deci-

sion of the district court and remanding for further con-

sideration of petitioners’ Section 2 claims. Petitioners also

secured an injunction preventing the implementation of a

special election for Senate District One absent Section 5

preclearance.

As a result of the litigation, the general assembly

enacted legislative and congressional plans which com-

plied with one person, one vote. Moreover, the legislative

plans for the house and senate, from the standpoint of

minority political participation, were an improvement

even over the court ordered plans.

According to the precedents of this Court, plaintiffs

are deemed prevailing parties within the meaning of the

fee statutes, 42 U.S.C. §§ 1973l(e) and 1988, “’if they

succeed on any significant issue in litigation which

achieves some of the benefit the parties sought in bring-

ing suit.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In

Texas State Teachers Association v. Garland Independent

School District, 489 U.S. 782, 784, 790 (1989), the Court

reaffirmed the Hensley formulation and unanimously

rejected the contention that plaintiffs must prevail on the

“central issue” in a case and achieve the “primary relief

sought” in the litigation to be deemed prevailing parties.

The search for the “central” issue and “primary” relief,

“much like the search for the golden fleece, distracts the

district court from the primary purposes behind § 1988

17

and is essentially unhelpful in defining the term ‘prevail-

ing party.’ ” 489 U.S. at 791. Instead, “[a] prevailing party

must be one who has succeeded on any significant claim

affording it some of the relief sought.” 489 U.S. at 791.

According to the Court, the central inquiry is whether

there was a “material alteration of the legal relationship

of the parties.” 489 U.S. at 792-93. Accord, Hewitt v. Helms,

482 U.S. at 761 (a plaintiff is prevailing who settles “some

dispute which affects the behavior of the defendant

towards the plaintiff”).

The Hensley standard, described by the Court as “a

generous formulation,” 461 U.S. at 433, is designed to

effectuate the intent of Congress in enacting the fee stat-

utes “to ensure ‘effective access to the judicial process’

for persons with civil rights grievances.” 461 U.S. at 429.

Accord, Texas State Teachers Association, 489 U.S. at 793

(“Congress meant to promote [the role of ‘private attor-

ney general’] in enacting the Civil Rights Attorney’s Fees

Awards Act of 1976”). Applying the legal standards

required by Hensley and Texas State Teachers Association,

and mindful of the underlying congressional purpose in

enacting the fee statutes, petitioners were prevailing par-

ties. They succeeded not merely on “any” significant

issue that achieved “some” of the benefit sought in bring-

ing suit, but they achieved essentially all of the basic

goals of their litigation.

Farrar v. Hobby further supports an award in this

case. Farrar was an action in which the plaintiffs sought

$17 million in money damages. Instead, the jury gave

them nothing; they recovered only nominal damages in

the amount of $1.00. While the Court held they were

prevailing parties, plaintiffs were not entitled to an award

18

of fees because their victory was purely “technical.” 113

S.Ct. at 574. However, as Justice O’Connor held in her

concurring opinion, “[nJominal relief does not necessarily

a nominal victory make.” 113 S.Ct. at 578. Recognizing

that the fee statute “is a tool that ensures the vindication

of important rights, even when large sums of money are

not a stake,” a court’s analysis should take into account

“the extent of relief, the significance of the legal issue on

which the plaintiff prevailed, and the public purpose

served.” 113 S.Ct. at 579 (O’Connor, J., concurring).

In Farrar there was no evidence of any “public pur-

pose this litigation might have served.” 113 S.Ct. at 578

(O’Connor, J., concurring). In this case, by contrast, the

litigation directly served the very important public pur-

poses of insuring that elections were held in a timely

manner under fairly apportioned redistricting plans, and

that legislatively enacted plans were implemented. Under

Farrar, these factors weigh heavily in support of a fee

award.

The court of appeals failed to apply the standards for

prevailing party status adopted by the Court in Hensley

and Texas State Teachers Association. The petition should be

granted because the lower court decided a federal ques-

tion in conflict with the applicable decisions of this Court.

Army & Airforce Exchange Service v. Sheehan, 456 U.S. 728,

733 (1982) (granting certiorari where the decision below

“appeared to be in conflict with our precedents”).

19

C. Petitioners’ Success on their Section 5 Claim

Was not Immaterial.

The court of appeals acknowledged that petitioners

prevailed on their claim that the special senate election

was subject to Section 5 preclearance. It held, however,

that the victory “does not represent a ‘material alteration

in the relationship between the parties’ such as to merit

treatment as a ‘prevailing party.’” App. 8. The court’s

ruling is in conflict with the decisions of this Court which

have recognized the importance of Section 5 in protecting

minority voting rights, as well as the crucial role played

by private enforcement, and the decisions of other federal

courts which have awarded attorney’s fees to plaintiffs

who have secured compliance with the statute.”

The Court in South Carolina v. Katzenbach, 383 U.S.

301, 334 (1966), upheld the constitutionality of Section 5

because of the exceptional history of voting discrimina-

tion in the jurisdictions covered by the statute and the

critical role of preclearance. The Court noted the “unre-

mitting and ingenious defiance of the Constitution” in

certain sections of the country, the failure of the case-by-

case method to end discrimination, and the “extraordin-

ary stratagem of contriving new rules of various kinds for

the sole purpose of perpetuating voting discrimination”

which Section 5 was designed to pretermit. Id. at 309, 335.

7 The actual time spent on the Section 5 issue was a small

part of the total litigation. But that does not mean, as the court of

appeals held, that securing compliance with Section 5 was

immaterial.

20

The Court has also stressed the importance of private

enforcement of the Act, particularly Section 5. In Allen v.

State Board of Elections, 393 U.S. 544, 554-57 (1969), the

Court inferred a private cause of action to enforce Section

5 based on the Act’s objective of protecting minority

citizens from discrimination in voting, concluding that

“achievement of the Act’s laudable goal could be severely

hampered . . . if each citizen were required to depend

solely on litigation instituted at the discretion of the

Attorney General.” 393 U.S. at 556.

In its 1975 amendments of the Act, Congress made

explicit its intent that private citizens could enforce Sec-

tion 5; it provided that every time “Attorney General”

appeared in Section 3, the “pocket trigger,” the words

“Attorney General or any aggrieved person” should be

substituted. 42 U.S.C. § 1973a(c); S.Rep. No. 295, 94th

Cong., 1st Sess. 40 (1975) reprinted in 1975 U.S.C.C.A.N.

774, 807 (“it is sound policy to authorize private remedies

to assist the process of enforcing voting rights”). The

Senate report explained that in voting rights cases “Con-

gress depends heavily upon private citizens to enforce

the fundamental rights involved.” S.Rep. No. 295 at 40.

See also Chisom v. Roemer, 501 U.S. 380 (1991) (private_

action to enforce Section 2); Morse v. Republican Party of

Virginia, 116 S.Ct. 1186, 1213 (1996) (recognizing a private

cause of action to enforce Section 10 of the Act, 42 U.S.C.

§ 1973h).8

8 Private enforcement has proved indispensable to the

effective implementation of the Act since its passage. See

Chandler Davidson & Bernard Grofman, “The Voting Rights Act

and the Second Reconstruction,” in Quiet Revolution in the

21

Congress has extended Section 5 three times since its

enactment in 1965 — in 1970, 1975, and in 1982. In the 1982

extension, Congress indicated that the gains in minority

political participation “are fragile,” and that “[w]Jithout

the preclearance of new laws, many of the advances of

the past decade could be wiped out overnight with new

schemes and devices.” S.Rep. No. 417, 97th Cong., 2d

Sess. 10 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 187.

The Senate report noted the “virtual unanimity among

those who have studied the record that Section 5 pre-

clearance should be extended.” Id. at 9 and 186.

In light of the strong congressional commitment to

Section 5 preclearance, the statute’s function in protecting

minority voting rights, and the central role played by

private enforcement in effectuating the Act’s purposes,

the court of appeals erred in concluding that petitioners’

successful efforts in securing compliance with the statute

were not “material.”

When it extended Section 5 in 1975, Congress also

amended the Act to authorize “a reasonable attorney’s

fee as part of the costs” to the prevailing party. 42 U.S.C.

§ 1973l(e). According to the Senate report, “[flee awards

are a necessary means of enabling private citizens to

vindicate these Federal [voting rights].” S.Rep. No. 295 at

40. To deny fees to a prevailing party, as here, would not

only be contrary to the intent of Congress, but would

improperly cast the burdens of litigation and delay upon

South: The Impact of the Voting Rights Act, 1965-1990, 385

(Chandler Davidson & Bernard Grofman eds., 1994) (the private

bar has had “a major role in enforcing public voting rights

law ... [t]his fact cannot be emphasized too strongly”).

22

the victims of possibly discriminatory practices. South

Carolina v. Katzenbach, 383 U.S. at 328.

Other lower federal courts, recognizing the impor-

tance of Section 5 enforcement, have awarded attorney’s

fees to plaintiffs who secured compliance with the statute

even when the voting change was determined not to

injure minority voting rights. In Maloney v. City of Mar-

ietta, 822 F.2d 1023 (11th Cir. 1987), the plaintiff was

deemed a prevailing party entitled to a fee award because

he succeeded in his action to require the city to comply

with Section 5 in using an unprecleared ward residency

requirement. Although the Attorney General precleared

the requirement, the court awarded fees because the leg-

islative history and the decisions of this Court provided

that a prevailing party “should ordinarily recover an

attorney’s fee unless special circumstances would render

such an award unjust.” 822 F.2d at 1026, quoting S.Rep.

No. 295 at 40, 1975 U.S.C.C.A.N. at 807, and Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1986).

The court also concluded in Maloney that the plaintiff

had protected important rights “guaranteed under the

[Voting Rights] Act.” Id.

By enacting the Voting Rights Act and subse-

quent amendments, Congress has evidenced its

determination that compliance with the Act’s

provisions is of importance in protecting minor-

ity race participation in government and gov-

ernment’s response to the legitimate interests of

minority citizens. Where there has been non-

compliance, the actor whose litigation brings

about compliance has protected important civil

rights of minorities.

23

822 F.2d at 1026 n.5. See also Arriola v. Harville, 781 F.2d

506, 512 (5th Cir. 1986) (plaintiffs entitled to fees for

securing an injunction against use of an unprecleared

voting practice); Brooks v. Georgia State Board of Elections,

997 F.2d 857 (11th Cir. 1993) (awarding plaintiffs fees in

successful effort to require state to submit new judge-

ships for preclearance); Robinson v. Alabama State Depart-

ment of Education, 727 F.Supp. 1422, 1425 (M.D.Ala. 1989)

(“fees for prevailing plaintiffs” are critical to Section 5

enforcement).

The decision of the court of appeals will weaken

enforcement of the Voting Rights Act in all the jurisdic-

tions located within the Fourth Circuit by making it more

difficult for economically disadvantaged minorities to

redress their grievances in the courts.? Further, it will

undermine the private attorney general aspect of the fee

statutes for other parties with important public issues.

Such a result is at odds with the intent of Congress in

enacting the fee statutes and of promoting the role of

“private attorney general” in vindicating protected vot-

ing and other rights. Texas State Teachers Association, 489

U.S. at 793.

9 The states in the Fourth Circuit covered in whole or in

part by Section 5 are Virginia, North Carolina, and South

Carolina, states which Congress specifically found had histories

of discrimination and “unremitting and ingenious defiance of

the Constitution” in the area of voting rights. South Carolina v.

Katzenbach, 383 U.S. at 309-10.

24

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

LAUGHLIN McDoNaLD

(Counsel of Record)

Neri BRADLEY

Mana ZAKI

CRISTINA CORREIA

American Civil Liberties Union

Foundation, Inc.

4 Forsyth Street, N.W.

Suite 202

Atlanta, Georgia 30303

(404) 523-2721

DENNIS COURTLAND Hayes

Wriure ABRAMS

NAACP Special Contribution

Fund

4805 Mount Hope Drive

Baltimore, Maryland 21215-3297

(301) 358-8900

JOHN Roy Harper II

P. O. Box 843

Columbia, South Carolina 29202

(803) 771-4723

Counsel for SRAC Petitioners

THoMAS R. GOTTSHALL

SINKLER & Boyp, P.A.

1426 Main Street, Suite 1200

Columbia, South Carolina 29201

(803) 779-3080

Counsel for Republican Party

Petitioners

App. 1

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

)

STATEWIDE REAPPORTIONMENT ADVISORY)

CommItrEE; WILLIAM GiBson, Doctor; )

FREDERICK CALHOUN JAMES, Bishop; )

Hersert Wiiuiams, Reverend; Willie)

B. Owens; South Carolina

Conference of the NAACP

Branches,

Plaintiffs-Appellants,

v.

Davip M. BEas_-ey, in his official

capacity as Governor of South

Carolina; Davin H. Wrixins, in his

official capacity as Speaker of the

South Carolina House of

Representatives,

Defendants-Appellees,

THE SOUTH CAROLINA SENATE,

Intervenor.

Nm me ee ee ee ee ee ee ee ee”

No. 96-1086

App. 2

MicHaAset G. BurTON, as Executive

Director on behalf of the

Republican Party; WituaM P.

Couuns, [I]; EArt CopeLanp;

WILLIAM Patrick FLACK; FRANK E.

Gipson, II]; Nancy D. Hawk; Gus

ROBERTS,

Plaintiffs-Appellants,

7 No. 96-1099

Davip M. Brastey, in his official

capacity as Governor of South

Carolina; Davip H. Wikins, in his

official capacity as Speaker of the

South Carolina House of

Representatives,

Defendants-Appellees,

THE SOUTH CAROLINA SENATE,

Intervenor.

ee ee ee ee ee ee , _e, _e__

Appeals from the United States District Court

of South Carolina, at Columbia.

Clyde H. Hamilton, Circuit Judge; G. Ross Anderson, Jr.,

District Judge; Falcon B. Hawkins, Senior District Judge.

(CA-91-3310-3, CA-91-2983-3)

Argued: September 24, 1996

Decided: October 30, 1996

Before NIEMEYER, MICHAEL, and MOTZ,

Circuit Judges.

tien

App. 3

Affirmed by published per curiam opinion. Judge

Niemeyer and Judge Motz wrote concurring opinions.

COUNSEL

ARGUED: Moffatt Laughlin McDonald, AMERICAN

CIVIL LIBERTIES UNION FOUNDATION, INC., Atlanta,

Georgia; Thomas Rush Gottshall, SINKLER & BOYD,

P.A., Columbia, South Carolina, for Appellants. Kenneth

Paul Woodington, Senior Assistant Attorney, General,

Columbia, South Carolina, for Appellees. Fred

Thompson, III, STOKES & THOMPSON, Charleston,

South Carolina, for Intervenor. ON BRIEF: Dennis Court-

land Hayes, Willie Abrams, NAACP SPECIAL CONTRI-

BUTION FUND, Baltimore, Maryland; John Roy Harper,

II, Columbia, South Carolina, for Appellants. Charles

Molony Condon, Attorney General, Treva G. Ashworth,

Deputy Attorney General, Columbia, South Carolina, for

Appellee Wilkins; Charles E. Carpenter, Jr., Frederick A.

Crawford, Deborah M. Sheffield, RICHARDSON, PLOW-

DEN, GRIER & HOWSER, P.A., Columbia, South Caro-

lina, for Appellee Beasley. Mark Packman, DICKSTEIN,

SHAPIRO & MORIN, Washington, D.C.; Gedney Howe,

Ill, Charleston, South Carolina, for Intervenor.

OPINION

PER CURIAM:

The Statewide Reapportionment Advisory Commit-

tee and the South Carolina Republican Party appeal the

App. 4

denial of attorney’s fees in this action brought pursuant

to the Voting Rights Act. We affirm.

I.

In 1990, census figures indicated that congressional

districts and state legislative districts were apportioned

unconstitutionally. After the release of these figures, the

South Carolina General Assembly established committees

to craft new redistricting plans. Deliberations continued

with no success prior to the adjournment of the legisla-

tive session in June, 1991.

On October 4, 1991, the South Carolina Republican

Party instituted an action in federal court alleging that

the existing plans were malapportioned and unconstitu-

tional. The party sought a declaration that the legislative

process was at an impasse, thereby allowing for judicial

intervention. A few weeks later, the Statewide Reappor-

tionment Advisory Committee (“SRAC”), an unincorpo-

rated association of private individuals and

organizations, filed a similar suit. A three-judge court

was constituted to hear the complaints pursuant to 28

U.S.C. § 2284, and the two cases were consolidated in

November, 1991. See Burton v. Sheheen, 793 F. Supp. 1329

(D.S.C. 1992), vacated, Statewide Reapportionment Comm. v.

Theodore, 508 U.S. 968 (1993), and Campbell v. Theodore, 508

U.S. 968 (1993).

In January 1992, the South Carolina Governor, Carroll

A. Campbell, Jr., vetoed the plans passed by the General

Assembly, requesting a plan with more majority black

districts. When no further action was taken by February

1992, the three-judge court declared a legislative impasse,

iene taieemiiasicnicieeainaiiaiiiiel

abet nteee 5

App. 5

and allowed proceedings to go forward. After a three

week trial, the court rejected redistricting plans submit-

ted by all parties, and adopted its own plan. The State

followed this plan during 1992 state elections.

SRAC, on one hand, and the Governor, on the other,

appealed the court’s decision. SRAC asserted, inter alia,

that the court had not properly applied the analysis

required by § 2 of the Voting Rights Act, 42 U.S.C. §§ 1973

et seq., in implementing the plans. (A § 2 review calls on a

court to “assess the impact of the contested [plan] on

minority electoral opportunities.” Burton, 793 F. Supp. at

1349, citing Thornburg v. Gingles, 478 U.S. 30, 44 (1986)). In

response to the SRAC appeal, the Supreme Court vacated

the lower court’s judgment and remanded the case for

“further consideration in light of the position presented

by the Solicitor General in his brief for the United States

filed May 7, 1993.” SRAC v. Theodore, 508 U.S. 968 (1993).

The Governor’s appeal received an identical response.

Campbell v. Theodore, 508 U.S. 968 (1993). Like SRAC, the

Solicitor General had maintained that the three-judge

court had failed to apply a proper § 2 analysis to the

plans.

On remand, the three-judge court allowed the South

Carolina General Assembly until August 1, 1995, to adopt

state redistricting plans and preclear them with the Jus-

tice Department in accordance with the Voting Rights

Act. Meanwhile, the Senate requested court approval to

utilize the court-developed 1992 plans in a special Octo-

ber 1994 election for an open senatorial seat. SRAC and

the Republican Party objected, arguing that these plans as

well must be pre-cleared prior to their use in this election.

App. 6

The court agreed with appellants and denied the Senate’s

motion.

By June 1995, the General Assembly had approved

and pre-cleared plans for the reapportionment of both

legislative houses as well as for congressional districts in

the state. The court case was dismissed two months later.

SRAC and the Republican Party subsequently moved for

attorney’s fees pursuant to 42 U.S.C. §§ 1973l(e) and 1988.

The three-judge court denied that motion, and this appeal

followed.

Il.

The question for our review is whether SRAC and the

Republican Party prevailed, as only prevailing parties are

eligible for attorneys fees. In Farrar v. Hobby, 506 U.S. 103

(1992), the Supreme Court clarified the applicable stan-

dard:

[T]o qualify as a prevailing party, a civil rights

plaintiff must obtain at least some relief on the

merits of his claim. The plaintiff must obtain an

enforceable judgment against the defendant

from whom fees are sought, or comparable relief

through a consent decree or settlement. What-

ever relief the plaintiff secures must directly

benefit him at the time of the judgment or settle-

ment. Otherwise the judgment or settlement

cannot be said to “affec[t] the behavior of the

defendant toward the plaintiff.”

Id. at 111 (internal citations omitted).

This Court interpreted Farrar’s requirements in S-1

and S-2 By and Through P-1 and P-2 v. State Bd. of Educ. of

App. 7

North Carolina, 6 F.3d 160 (4th Cir. 1993) (Wilkinson, J.,

dissenting), vacated, 21 F.3d 49, 51 (4th Cir.) (en banc)

(adopting Judge Wilkinson's dissent as the majority opin-

ion), cert. denied, 115 S.Ct. 205 (1994). There, parents of

handicapped students brought an action, pursuant to 42

U.S.C. § 1983, against city and state officials for tuition

reimbursement. The district court granted the plaintiffs

summary judgment and the defendants appealed. S-1 and

S-2 v. Spangler, 650 F. Supp. 1427 (M.D.N.C. 1986). After

city officials agreed to reimburse tuition expenses, the

parents continued to maintain their action against state

officials. We held that the settlement with city officials

mooted any action against state officials, and vacated the

district court’s grant of summary judgment to the plain-

tiffs against state officials. S-1 and S-2, 832 F.2d 294, 298

(4th Cir. 1987). On remand, the district court, recognizing

the case’s impact on state legislation, ordered that the

State pay attorney’s fees to the plaintiffs; a panel of this

court affirmed. 6 F.3d 160.

Sitting en banc, a majority of this court reversed that

decision. 21 F.3d 49. In doing so, the court rejected “cata-

lyst” analysis of causation in determining prevailing

party status. The court held that “[t]here is no way

... that Farrar and a broad ‘catalyst theory’ of attorneys’

fees recovery can be reconciled.” 6 F.3d at 168-69 (Wilkin-

son, J., dissent) (adopted by majority opinion in S-1 and

S-2, 21 F.3d at 51). Rather, the court concluded that the

determinative factor would be a “material alteration of

the legal relationship between the parties” as manifested

by whether the plaintiff was entitled to enforce “a judg-

ment, consent degree, or settlement against the defen-

dant.” Id. at 168-69 (quoting Farrar, 113 S.Ct. at 574).

App. 8

Applying our holding in S-1 and S-2 to the instant

case, the court below determined that SRAC and the

Republican Party did not meet the definition of “prevail-

ing parties.” Because the court’s original decision was

vacated by the Supreme Court, they were not entitled to

enforce any judgment against the defendants. Id. at 169

(“[T]he judgment’s vacatur on appeal renders it a legal

nullity.”).

We agree with the three-judge court’s ruling. SRAC

and the Republican Party fail to meet the standard set

forth in S-1 and S-2: neither the district court’s vacated

judgement, nor the Supreme Court’s decision to remand

to the district court for further consideration in light of

the Solicitor General’s brief constitutes an enforceable

judgment against the defendants. Similarly, the lower

court’s holding regarding preclearance of special election

plans by the Justice Department does not represent a

“material alteration in the relationship between the par-

ties” such as to merit treatment as a “prevailing party.”

Id. at 168-69.*

Because SRAC and the Republican Party cannot

establish that they meet the requirements set forth in S-1

and S-2, they are not entitled to attorney’s fees.

AFFIRMED.

* In passing, SRAC and the Republican Party suggest that

an exception to S-1 and S-2 be made for redistricting cases. But

S-1 and S-2 itself contains language rejecting such a carve-out. 6

F.3d at 169 n.2 (stating that a redistricting case, Craig v. Gregg

County, 988 F.2d 18, 21 (5th Cir. 1993), “skirted the issue” as to

the conflict between catalyst theory and Farrar and therefore

was unpersuasive).

EE

App. 9

NIEMEYER, Circuit Judge, concurring:

To be a prevailing party in a legal action, a party

must obtain relief in the action on the merits of his claim,

see Farrar v. Hobby, 506 U.S. 103, 111 (1992), and not from

some other process. The fee shifting statutes, such as 42

U.S.C. §§ 1973l(e) and 1988, reward successful litigants,

not success in the political process even if the political

success was a response to the litigation. Accordingly, in

S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49, 51 (4th Cir.) (en

banc) (adopting Judge Wilkinson’s dissent at 6 F.3d 160

(4th Cir. 1993)), cert. denied, 115 S.Ct. 205 (1994), we

rejected a broad catalyst theory for awarding attorneys

fees to litigants simply because their position in litigation

was vindicated by an external process or sequence of

events outside of the litigation.

While I agree that S-1 and S-2 requires us to affirm in

this case, I believe the question of who prevailed, even

when measuring the results obtained through the politi-

cal process, is so unclear that whether we apply S-1 and

S-2 or evaluate who won in the political arena, I could not

conclude that the district court abused its discretion in

denying the appellants’ attorneys fees.

DIANA GRIBBON MOTZ, Circuit Judge, concurring:

The parties have not established that they meet the

“prevailing party” requirements of S-1 and S-2. No panel

can refuse to follow a circuit precedent established by

another panel, let alone one established by the entire

court sitting en banc. Accordingly, I concur in the court's

opinion and judgment.

App. 10

I write separately only to indicate that I believe that

the Supreme Court’s holding in Farrar would not neces-

sarily require the same outcome. I note that, when we

issued S-1 and S-2, our conclusion that Farrar dicta evisce-

rated the catalyst analysis was contrary to the view of

every other circuit to address the question. In the three

years since the issuance of S-1 and S-2 no circuit has

followed our holding. Several have specifically disagreed

with it. See, e.g., Brown v. Local 58, IBEW, 76 F.3d 762, 772

(6th Cir. 1996); Beard v. Teska, 31 F.3d 942, 951 (10th Cir.

1994); Kilgour v. City of Pasadena, 53 F.3d 1007 (9th Cir.

1995); Zinn By Blankenship v. Shaw'la, 35 F.3d 273, 275 (7th

Cir. 1994). See also Southeastern Fisheries Ass‘n v. Chiles, 876

F. Supp. 270, 271 (S.D. Fla. 1995).

Ironically, the “catalyst” analysis was devised to

address cases like the one at hand. SRAC and the Repub-

lican Party advance the classic “but for” scenario: had it

not been for the filing of their complaints in the district

court, the court would not have intervened in the reap-

portionment process. Without such intervention, the

South Carolina General Assembly would not have

adopted a scheme that drew heavily from that judicially-

crafted plan. Yet even if SRAC and the Republican Party

did cause those results, S-1 and S-2 forecloses this argu-

ment and requires that, without further ado, we conclude

that they were not prevailing parties because they did not

win an enforceable judgment against the defendants.

saciid

App. 11

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA

COLUMBIA DIVISION

MICHAEL G. BURTON, as

Executive Director and on behalf

of the Republican Party, et al.,

Plaintiffs,

C/A

No. 3:91-2983-1

Vs.

ROBERT J. SHEHEEN, in his

representative capacity as Speaker

of the South Carolina House of

Representatives, et al.,

ROBIN TALLON, NEIL A.

VANDER LINDEN, FORREST E.

OTT, PHILIP T. JONES, ANN Y.

HART, PEGGY A. DUFEK,

GWENDOLYN L. GROOMS, THE

SOUTH CAROLINA SENATE,

THE DEMOCRATIC PARTY OF

SOUTH CAROLINA,

Defendant-Intervenors.

)

)

)

)

)

)

)

)

)

)

Defendants,

)

)

)

)

)

)

)

)

)

)

)

App. 12

STATEWIDE ) C/A

REAPPORTIONMENT ADVISORY )

COMMITTEE, et al., , =o

— ) (Filed

Plaintiffs, Dec. 15, 1995)

VS. )

CARROLL A. CAMPBELL, JR., et )

al., .

Defendants. )

)

These matters are before the court on petitions of

plaintiffs, the South Carolina Republican Party and the

Statewide Reapportionment Advisory Committee

(SRAC), for attorneys’ fees pursuant to 42 U.S.C.

§§ 1973l(e) and 1988. For the reasons set forth below, the

petitions are denied.

I

The facts of the underlying dispute are fully set forth

in the court’s order dated May 1, 1992. See Burton v.

Sheheen, 793 F.Supp. 1329 (D.S.C. 1992), vacated, 113 S. Ct.

2954 (1993). To recapitulate briefly, the 1990 census fig-

ures, which were released in March of 1991, showed

South Carolina’s Senate, House, and congressional dis-

tricts were unconstitutionally apportioned. From the

point the census figures were released until the General

Assembly adjourned sine die on June 6, 1991, both the

Senate and the House wrestled, without success, to pass

new redistricting plans. A concurrent resolution was

introduced to extend the legislative session, but this reso-

lution lacked the two-thirds majority needed for passage.

App. 13

On October 4, 1991, the Republican Party instituted

the underlying action claiming the existing Senate,

House, and congressional plans were unconstitutionally

apportioned. The Republican Party requested an injunc-

tion to prevent future use of those plans, a judicial deter-

mination that the redistricting process was at an impasse,

and the adoption of the plans that it proposed.

On October 31, 1991, the SRAC filed a complaint

substantially similar to the one filed by the Republican

Party. The SRAC sought a judicial determination that the

existing plans were unconstitutionally apportioned, that

the existing plans could not be continued, and that the

legislative process was at an impasse. In addition, the

SRAC asked that its case be consolidated with the Repub-

lican Party’s case. Consolidation was ordered November

13, 1991.

Shortly after reconvening on January 14, 1992, the

General Assembly passed new Senate (S. 1003) and

House (H. 3435) redistricting plans. These plans were

vetoed by Governor Carroll A. Campbell, and the vetoes

were upheld. The Governor’s veto messages encouraged

the General Assembly to draw more majority black dis-

tricts in both S. 1003 and H. 3435 and to enhance the

majority black districts which had been drawn in S. 1003.

The General Assembly never passed a congressional plan.

No further plans were passed by the General Assem-

bly. On February 10, 1992, the court convened a status

conference at which all parties agreed that the legislative

process was at an impasse with respect to redistricting.

Pending motions were resolved and trial procedures were

set. Trial ensued and the court ultimately fashioned its

App. 14

own plans after concluding that “none of the plans pro-

posed .. . fully comports with the objectives and criteria

which should be incorporated in a judicially approved

plan.”

The SRAC appealed the court’s order to the Supreme

Court. The Court vacated the judgment of this court and

remanded the case to this court for “further consideration

in light of the position presented by the Solicitor General

in his brief for the United States filed May 7, 1993.” SRAC

v. Theodore, 113 S. Ct. 2954 (1993). Essentially, the

Supreme Court wanted a § 2 analysis to be performed.

However, the Supreme Court did not vacate the elections

based on the court’s plans. This court then afforded the

“legislative process” of the State of South Carolina until

August 1, 1995 to adopt and preclear a districting plan for

the Senate.

Shortly thereafter, on February 2, 1994, the General

Assembly passed H. 4333 Act #284 of 1994, which legis-

latively reapportioned the S.C. House of Representatives.

That Act was not signed by the Governor but became law

on February 15, 1994. On May 31, 1994, the plan received

preclearance by the Department of Justice (DOJ).

On March 28, 1994, the General Assembly ratified H.

4332, which legislatively reapportioned the congressional

districts in a slightly different manner than the court-

drawn plan. H. 4332 became law on March 29, 1994

without the Governor’s signature. On April 28, 1994, the

congressional plan was precleared by the DOJ.

Also in 1994, the Lieutenant Governor ordered a

special election to replace Senator Alexander S. Macaulay

in Senate District One. Senator Macaulay’s position

App. 15

opened when he was elected to the South Carolina judici-

ary as a Circuit Judge by the General Assembly. On July

20, 1994, the Senate requested an order from this court

directing the use of this court’s 1992 district lines for use

in the special election. The Republican Party and the

SRAC, among others, asked this court to require the state

to preclear the use of the 1992 plan with the DOJ. This

court agreed and on August 22, 1994, ordered the plan to

be submitted for preclearance under § 5 of the Voting

Rights Act. The plan was submitted to the DOJ and was

eventually precleared on December 12, 1994.

Subsequently, S. 9 Act #49 of 1995, which reappor-

tioned the South Carolina Senate, passed both Houses on

May 11, 1995. This Act became law on May 18, 1995

without the Governor’s signature. The underlying plan

was precleared by the DOJ on May 30, 1995.

Against this backdrop we are asked to award attor-

neys’ fees to the Republican Party and the SRAC under 42

U.S.C. §§ 1973l(e) and 1988.

II

We first turn to the standards for determining when a

plaintiff can be awarded attorneys’ fees. Here, the plain-

tiffs have moved for attorneys’ fees under 42 U.S.C.

§§ 1973l(e) and 1988.1 Because the statutes contain nearly

* 42 U.S.C. § 1973I(e) states the following:

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

App. 16

identical language and because the legislative intent was

to have the same standards apply to both fee awards, this

court shall construe the statutes similarly and shall apply

the case law interpreting one statute to the other statute.

See Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983);

Hastert v. Illinois State Bd. of Election Comm'rs, 28 F.3d

1430, 1439 n.10 (7th Cir. 1993), cert. denied, 115 S. Ct. 429

(1994); Bly v. McLeod, 605 F.2d 134, 138 (4th Cir. 1979)

(“§§ 1973l(e) and 1988 are phrased in identical terms, and

we apply the same rule of decision under both of them.”)

cert. denied, 445 U.S. 928 (1980).

“Congress intended to permit the . . . award of coun-

sel fees only when a party has prevailed on the merits.”

Farrar v. Hobby, 506 U.S. 103, 113 S. Ct. 566, 572 (1992)

(quoting Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)

“ [T]he fee applicant bears the burden of

establishing entitlement to an award|[,]’” and the district

court has discretion in determining the amount of the fee

award. Alexander v. Mayor & Council, 953 F.2d 160, 161

(4th Cir.1992) (quoting Hensley, 461 U.S. at 437). “ ‘This is

appropriate in view of the district court’s superior under-

standing of the litigation and the desirability of avoiding

(per curiam).

party .. . a reasonable attorney’s fee as part of the

costs.

42 U.S.C. § 1988, which was patterned in part upon

§ 1973l(e), similarly states the following:

“In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this

title . . . the court, in its discretion, may allow the

prevailing party . .. a reasonable attorney’s fee as part

the costs.”

App. 17

frequent appellate review of what are essentially factual

matters.’ ” Id. (quoting Hensley, 461 U.S. at 437).

“{I]n order to qualify for attorney’s fees under § 1988

for § 1973l(e)], a plaintiff must be a ‘prevailing party.’ ”

Farrar, 113 S. Ct. at 572. “The touchstone of the prevailing

party inquiry must be the material alteration of the legal

relationship of the parties.” Texas State Teachers Ass‘n v.

Garland Indep. Sch. Dist., 489 U.S. 782, 792-793 (1989).

“[T]o qualify as a prevailing party, a civil rights plaintiff

must obtain at least some relief on the merits of his claim.

The plaintiff must obtain an enforceable judgment against

the defendant from whom fees are sought, or comparable

relief through a consent decree or settlement.” Farrar, 113

S. Ct. at 573 (citations omitted). It is “[oJnly under these

circumstances [that] civil rights litigation effect[s] the

material alteration of the legal relationship of the parties’

and thereby transform[s] the plaintiff into a prevailing

party.” Id. at 573 (quoting Garland, 489 U.S. at 792-793).

If the plaintiffs are found to be prevailing parties, the

issue of attorneys’ fees must be considered. As a proviso,

the court cautions that “a determination that a party has

‘prevailed’ . . . means only that fee claimants are eligible

for attorneys’ fees. The court must then consider whether

a fee award would be ‘unjust’ under the particular cir-

cumstances.” Commissioners Court v. United States, 683

F.2d 435, 442 (D.C. Cir. 1982). See also Farrar, 113 S. Ct. at

577 (O’Connor, J., concurring) (finding the fee award

statutes “expressly grant[] district court’s discretion to

withhold attorney’s fees from prevailing parties in appro-

priate circumstances”). Therefore, we will address the

question of attorneys’ fees only if the plaintiffs are found

to be prevailing parties.

As an initial matter, we must determine the effect of

S-1 and S-2 v. State Bd. of Educ., 21 F.3d 49 (4th Cir.) (en

banc), cert. denied, 115 S. Ct. 205 (1994), on this case. We

find that as a matter of law the plaintiffs cannot be

considered prevailing parties because an enforceable

judgment against the defendants no longer exists.

The plaintiffs initially obtained a judgment on the

merits of their claims, see Burton v. Sheheen, 793 F.Supp.

1329 (D.S.C. 1992), but that judgment is no longer

enforceable because the Supreme Court vacated it. SRAC

v. Theodore, 113 S. Ct. 2954 (1993). “The judgment’s

vacatur on appeal renders it a legal nullity.” S-1 and S-2 v.

State Bd. of Educ., 6 F.3d 160, 169 (4th Cir. 1993) (Wilkin-

son, J., dissenting), vacated, 21 F.3d 49, 51 (4th Cir.) (en

banc) (adopting Judge Wilkinson’s dissent as the majority

opinion), cert. denied, 115 S.Ct. 205 (1994). But the result of

the vacatur was somewhat less than clear. Although the

Supreme Court vacated and remanded the judgment of

this court, the Court neither vacated the lines drawn by

this court nor the elections held pursuant to the 1992

plans. Nonetheless, after the Court's action, the plaintiffs

could no longer enforce this court’s initial order.

The Republican Party specifically claims that its law-

suit acted as a catalyst in bringing about redistricting. But

in S-1 the Fourth Circuit Court of Appeals rejected the

catalyst theory as a means of determining who is a pre-

vailing party. Significantly, the court found that “ ‘[n]o

material alteration of the legal relationship between the

parties occurs until the plaintiff becomes entitled to

neni

App. 19

enforce a judgment, consent decree, or settlement against

the defendant.’ ” S-1, 6 F.3d at 168 (Wilkinson, J., dissent-

ing) (quoting Farrar, 113 S. Ct. at 574). Since no enforce-

able judgment, consent decree, or settlement exists

against these defendants, we are precluded from finding

that the plaintiffs are prevailing parties.

B

We, however, are aware that the Fourth Circuit’s

reasoning has not been shared by the other Circuit Courts

of Appeals.? In light of this split of authority, we addi-

tionally find that the plaintiffs would not be entitled to

attorneys’ fees under any theory because their successes

were only technical or de minimis.

As noted above, the Republican Party and the SRAC

essentially sought four objectives: (1) a determination

that the existing Senate, House, and congressional plans

were unconstitutionally apportioned, (2) an injunction to

prevent future employment of those plans, (3) a deter-

mination that the legislative process was at an impasse,

and (4) adoption of the plans proposed by them for the

three legislative bodies.

2 See, e.g., Marbley v. Bane, 57 F.3d 224, 233-35 (2nd Cir.

1995); Kilgour v. City of Pasadena, 53 F.3d 1007, 1010 (9th Cir.

1995); Zinn by Blakenship v. Shalala, 35 F.3d 273, 274-76 (7th Cir.

1994); Baumgartner v. Harrisburg Housing Auth., 21 F.3d 541,

544-50 (3rd Cir. 1994).

App. 20

1

Issues (1) and (2) were conceded by the defendants

through their answers to the complaint and, before that,

through the establishment of both Senate and House sub-

committees to draw new plans even before the 1990

census figures were released. Thus, the issue of whether

the existing plans were constitutional was the issue never

in dispute before this court. Further, this issue consumed

virtually none of the court’s time, in either the pre-trial or

trial stages, and was effectively dealt with in the court’s

order by a footnote. See Burton, 793 F.Supp. at 1336 n.2. It

cannot be credibly asserted that the underlying litigation

resulted from a dispute over the viability of the existing

plans. Similarly, since all parties agreed the existing plans

were unconstitutionally apportioned, it strains reason to

suggest the issue of whether these plans could continue

to be employed was a significant one. If the only issues in

this litigation had been the condition of the existing plans

and their fitness for continued use, the nearly three week

trial which this court presided over could have been

effectively reduced 'to a one hour hearing, if that. Since

the issues of the viability of the existing plans and their

appropriateness for continued use were not significant

issues, the plaintiffs cannot be considered prevailing par-

ties under the standards set forth in Farrar requiring a

party to succeed on a significant issue.

2

Next, the plaintiffs claim prevailing party status on

the issue of impasse. On this issue we conclude that the

plaintiffs did not prevail. As mentioned above, the

App. 21

Republican Party’s complaint, filed October 4, 1991,

sought an immediate judicial determination that the leg-

islative process was irretrievably deadlocked. The SRAC

requested an identical finding in its complaint filed Octo-

ber 31, 1991. The defendants denied the legislative proc-

ess was deadlocked and moved to have the complaint

dismissed on the ground of ripeness. On February 10,

1992, the impasse issue was resolved by a court order

declaring an impasse, to which both parties consented.

At the time of the Republican Party’s request, there

still existed some possibility of a legislative resolution of

the redistricting process when the General Assembly

reconvened in January. As the Supreme Court stated in

Wise v. Lipscoinb:

[Redistricting and reapportioning legislative

bodies is a legislative task which the federal

courts should make every effort not to pre-empt.

Legislative bodies should not leave their

reapportionment tasks to the federal courts; but

when those with legislative responcibilities do

not respond, or the imminence of a state election

makes it impractical for them to do so, it

becomes the “unwelcome obligation” of the fed-

eral court to devise and impose a reapportion-

ment plan....

437 U.S. 535, 539-540 (1978) (citations omitted).

Thus, “judicial relief becomes appropriate only when

a legislature fails to reapportion according to federal

constitutional requisites in a timely fashion after having

had an opportunity to do so.” White v. Weiser, 412 USS.

783, 794-795 (1973) (quoting Reynolds v. Sims, 377 US. 533,

App. 22

586. (1964)). Therefore, in October of 1991, South Caro-

lina’s redistricting process was not technically at an

impasse because the process still held some hope of a

legislative solution.

With an eye toward affording the legislature every

opportunity to perform its redistricting responsibilities,

this court postponed a decision on the request for a

finding of impasse until January of 1992 and later to

February of that same year. In the interim, plans for the

Senate and House were passed, but vetoed by the Gover-

nor and those vetoes were sustained. No congressional

plan was passed. Thus, it is imminently reasonable to

conclude South Carolina’s attempt at redistricting itself

was not at an impasse in October of 1991 since a legisla-

tive resolution could be achieved as evidenced by the

discernable, although not dispositive, process made by

the General Assembly after their return in January of

1992.

We are therefore confronted with the question of

whether the parties’ agreement and subsequent court

finding of impasse on February 10, 1992, qualifies the

plaintiffs as prevailing parties. We find that the resolution

of the impasse issue was a procedural finding amounting

to little more than a determination of ripeness by the

court. At most, our finding that an impasse existed was

an interlocutory ruling that allowed the case to proceed

to trial at the time it did. See Hewitt v. Helms, 482 U.S. 755,

760 (1987) (denying attorney’s fees when “[t]he most that

[the plaintiff] obtained was an interlocutory ruling that

his complaint should not have been dismissed for failure

to state a constitutional claim”). Our finding that an

impasse existed in no way affected the merits. In fact, the

a oe ea? fee ee Drs

Dea ea Sete Sr ORR me ene ED aver a te

App. 23

finding of impasse was purely a procedural victory open-

ing the door that eventually led to a rejection of the plans

proposed by the plaintiffs. Therefore, because the

impasse issue was not significant and the agreement

failed to change the legal relationship between the plain-

tiffs and the defendants, we find that the plaintiffs are not

prevailing parties on the impasse issue.

Furthermore, although a meaningful participant in

other areas of this litigation, the SRAC was not the

motivating force behind the court’s finding of impasse.

The eventual resolution of the impasse issue was dictated

and determined by the court and the calendar more so

than by the efforts of one of the parties. The SRAC was

not the first party to raise the impasse issue or seek relief.

Instead, the SRAC merely joined in the Republican

Party’s argument. In this court’s considered opinion, the

fee statutes were not passed to compensate parties who

perfunctorily join in motions, particularly when the

motions in question are of procedural import in the first

instance. In addition, since the Republican Party is not a

prevailing party on the issue of impasse, it would defy

logic to find that the SRAC was a prevailing party.

3

Finally, the plaintiffs claim prevailing party status on

the basis of the plans which eventually emerged from this

process. In particular, the Republican Party claims to

have been a catalyst in the court’s decision to draw a

minority opportunity district in South Carolina’s Sixth

Congressional District. None of the parties, however,

App. 24

opposed the creation of some form of minority oppor-

tunity district in South Carolina. In fact, every plan

offered at trial, including defendants’, contained such a

district.

Similarly, the SRAC claims it is entitled to fees as a

prevailing party for the adoption of new plans for the

Senate, House, and Congress irrespective of authorship.

Specifically, counsel for the SRAC states the court “has

granted Plaintiff[ ] SRAC relief on a significant issue pre-

sented in this litigation by adopting and creating plans

for the redistricting of South Carolina’s Senate, House of

Representatives, and congressional districts. It is clear,

therefore, that Plaintiff[] SRAC has prevailed in this

action and achieved significant relief.” SRAC’s Petition

for Attorneys’ Fees at 3. This is certainly a curious expla-

nation of the process in light of the fact that the SRAC

appealed the very order which redistricted the state’s

legislative bodies. Either the SRAC was dissatisfied with

the court’s plans, which would raise doubts about its

alleged “prevailing party” status, or its initial objective

was merely for new plans to be drawn irrespective of

authorship, which makes the SRAC’s complaint super-

fluous since the Republican Party had already filed suit

requesting new plans.

The obvious motive and goal of the plaintiffs was to

get their plan adopted by the court. As this court made

abundantly clear in the underlying order, the plans pre-

sented by the parties suffered a myriad of infirmities. In

addition, we emphasized **- plans we fashioned were

App. 25

our own and did not remotely resemble the plans pro-

posed by either plaintiff.* The only factors the court

considered in fashioning its plan for South Carolina’s

Congressional districts were the federal and statutory

requirements for congressional plans and South Caro-

lina’s state policies, provided those policies were consis-

tent with the federal requisites. In truth, the testimony

heard by the court was of little help in creating its plan. It

should be noted the Republican Party proposed no Con-

gressional plan and instead supported the plan offered by

Governor Campbell. Thus, it cannot be credibly asserted

that the plaintiffs “prevailed” in the creation of the

interim plans this court ordered or more specifically, that

the Republican Party prevailed in this court’s creation of

a minority opportunity district.

IV

The plaintiffs next contend that they have prevailed

in litigation concerning the special election to replace

Senator Macaulay in Senate District One. We agree.

As mentioned above, in 1994 a special election was

ordered to replace Senator Macaulay in Senate District

One. On July 20, 1994, the Senate requested a court order

that the court-drawn lines used in 1992 also be used in

the special election. The plaintiffs asked the court to

3 While this court does not find the plaintiffs to be

prevailing parties on this issue, the court does not adopt the

reasoning in Hastert v. Illinois State Bd. of Election Com’rs, 28 F.3d

1430 (7th Cir. 1993). In Hastert, the Seventh Circuit held that the

touchstone for whether a party prevails is whether their map is

ultimately adopted. Id. at 1443.

App. 26

require the state to obtain preclearance of the 1992 lines

from the DOJ. The Senate argued that court-drawn plans

did not require preclearance under § 5 of the Voting

Rights Act. The plaintiffs took the position that the adop-

tion of the court’s plan by the Senate was an act of

legislative judgment, and therefore, the party-sponsored

plan had to be submitted to the DOJ for preclearance,

even if that plan adopted a prior court-ordered plan. The

plan was submitted and received preclearance from the

DOJ on December 12, 1994.

We are now faced with the question of whether the

plaintiffs’ success in obtaining a court order requiring

preclearance of the 1992 district lines qualifies the Repub-

lican Party and the SRAC as prevailing parties. We find

that the plaintiffs’ success on this issue does qualify them

as prevailing parties. Pursuant to Farrar, a prevailing

party “must obtain an enforceable judgment against the

defendant from whom fees are sought...” Farrar, 113 S.

Ct. at 573 (citing Hewitt, 482 U.S. at 760). Here, the court

order requiring the Senate to obtain preclearance was

enforceable by the Republican Party and the SRAC.

In light of the DOJ’s subsequent preclearance of the

plan, the plaintiffs’ victory was pyrrhic at best. While the

plaintiffs were successful in having the plan submitted

for preclearance, the election ultimately was conducted

pursuant to the 1992 plan. The court recognizes that the

plaintiffs still qualify as prevailing parties, but cautions

that “although the ‘technical’ nature of a nominal dam-

ages award or any other judgment does not affect the

prevailing party inquiry, it does bear on the propriety of

fees awarded.” Farrar, 113 S. Ct. at 574.

App. 27

V

The SRAC also has prevailed on another aspect of

this litigation. On May 22, 1992, the SRAC filed a notice

of appeal to the Supreme Court seeking review of the

districting plan ordered by this court. On June 14, 1993,

the Supreme Court vacated this court’s judgment and

remanded the case to this court for “further consideration

in light of the position presented by the Solicitor General

in his brief for the United States filed May 7, 1993.” SRAC

v. Theodore, 113 S.Ct. 2954 (1993). But the result of the

vacatur was somewhat less than clear.

While the Supreme Court vacated and remanded the

judgment of this court, the Court did not expressly vacate

the lines drawn by this court. In addition, the elections

held pursuant to the 1992 plans were not vacated. Thus,

the net result of the SRAC’s appeal was that the judgment

was vacated, but all actions conducted pursuant to the

judgment were untouched.

Nevertheless, the SRAC did prevail in having the

judgment vacated. Even though the effect that vacating

the judgment would have on the parties was unknown at

the time, the SRAC had obtained an enforceable judg-

ment. As such, remanding the case for further consider-

ation in light of the Solicitor General’s position was a

direct benefit for the SRAC. Indeed, according to Farrar,

this success qualifies the SRAC as a prevailing party as

“[w]hatever relief the plaintiff secures must directly bene-

fit him at the time of the judgment.” 113 S. Ct. at 573.

Therefore, while the benefit was minor, it was sufficient

to qualify the SRAC as a prevailing party on this issue.

App. 28

VI

In summary, this court finds that: (1) both the Repub-

lican Party and the SRAC are prevailing parties on the

litigation surrounding Senate District One, and (2) the

SRAC is a prevailing party for obtaining the Supreme

Court order vacating our judgment in Burton v. Sheheen.

Having found the plaintiffs to be prevailing parties, the

issue of attorneys’ fees must be considered. The court

cautions that “a determination that a party has ‘pre-

vailed’ . . . means only that fee claimants are eligible for

attorneys’ fees. The court must then consider whether a

fee award would be ‘unjust’ under the particular circum-

stances.” Medina, 683 F.2d at 442. The fee award statutes

“expressly grant[ ] district courts’ discretion to withhold

attorney’s fees from prevailing parties in appropriate cir-

cumstances.” Farrar, 113 S. Ct. at 577 (O’Connor, J., con-

curring). Indeed, 42 U.S.C. § 1973l(e) provides that “the

court, in its discretion, may allow the prevailing par-

ty . . . a reasonable attorney’s fee.”

The “ ‘most critical factor’ in determining the rea-

sonableness of a fee award ‘is the success obtained’ ” by

the prevailing party. Farrar, 113 S. Ct. at 574 (quoting

Hensley, 461 U.S. at 436). As stated above, while “the

‘technical’ nature of a nominal damages award, or any

other judgment does not affect the prevailing party

inquiry, it does bear on the propriety of fees awarded.”

Id. As such, “in some circumstances, even a plaintiff who

formally ‘prevails’ . . . should receive no attorney’s fees at

all.” Id. at 575. Therefore, the court must examine the

overall success of the Republican Party and the SRAC as

“the degree of the plaintiff’s overall success goes to the

reasonableness” of a fee award. Id. at 574.

App. 29

A

Both the Republican Party and the SRAC prevailed in

the litigation surrounding Senate District One. Upon

review, this victory is de minimis or pyrrhic at best. The

outcome of that dispute was that the court required the

Senate to submit the 1992 districting plans to the DOJ for

preclearance. While the plaintiffs were successful in

obtaining the submittal, the fact that the DOJ precleared

those very same 1992 lines for use in the special election

makes the plaintiffs’ success facial and de minimis.

B

In addition, the SRAC’s success in obtaining a

Supreme Court order vacating our order and remanding

the case to this court for further consideration is also

merely technical and de minimis. In essence, what the

SRAC achieved was a situation where the Supreme

Court’s order vacated the judgment, but left undisturbed

the actions performed under the judgment. Indeed, the

Supreme Court did not invalidate the 1992 Senate elec-

tions held pursuant to the vacated court order. And, in

addition, the period whereby the court-drawn plan

ceased to exist was short-lived. In 1994, the General

Assembly passed a House of Representatives’ act which

became law and later was precleared for use by the DOJ.

Also in 1994, a plan for the congressional districts was

passed and precleared. Then, in 1995, a Senate Act

became law and was also precleared. In the meantime, as

evidenced in the Senate District One litigation, the DOJ

precleared the 1992 plans for use in various elections.

App. 30

Therefore, the SRAC’s success as a prevailing party was

purely technical in nature and de minimis.

The court admits that “prevailing plaintiffs ‘should

ordinarily recover an attorney’s fee unless special circum-

stances would render such an award unjust.’ ” Hastert, 28

F.3d at 1439. (quoting S. Rep. 925, 94th Cong., 1st Sess. 40

(1975), reprinted in 1975 U.S.C.C.A.N. 774, 807 (addressing

§ 1973l(e)); S. Rep. 1011, 94th Cong., 2d Sess. 4 (1976),

reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (addressing

§ 1988)). However, in this case the de minimis nature of

the plaintiffs’ success is undeniably a special circum-

stance. As Justice O’Connor stated in her concurring

opinion in Farrar, “When the plaintiff’s success is purely

technical or de minimis, no fees can be awarded.” 113 S.

Ct. at 576. Indeed, “ ‘a technical victory may be so insig-

nificant’ .. . as to be insufficient to support an award of

attorney’s fees.” Id. (quoting Garland, 489 U.S. at 792).

Therefore, upon consideration of the technical and unre-

markable success of the prevailing plaintiffs the court is

compelled to award no attorneys’ fees to either the

Republican Party or the SRAC.,

After evaluating the magnitude, or lack thereof, of

the prevailing parties’ success, “the court may lawfully

award low fee or no fees without reciting the 12 factors

bearing on reasonableness or multiplying ‘the number of

hours reasonably expended . . . by a reasonable hourly

rate.’ ” Id. at 575 (quoting Hensley, 461 U.S. at 433, 103

S.Ct. at 1939). In addition, Justice O’Connor has stated:

As a matter of common sense and sound judicial

administration, it would be wasteful indeed to

require that courts laboriously and mechanically

go througl those steps when the de minimis

App. 31

nature of the victory makes the proper fee

immediately obvious. Instead, it is enough for a

court to explain why the victory is de minimis

and announce a sensible decision to ‘award low

fees or no fees’ at all.

Id. at 576 (quoting Id. at 575).

In this case, the above discussion explains why we

find the success of the plaintiffs to be de minimis. For

those reasons stated, we find that the reasonable fee is no

fee at all.

VII.

To conclude, we find that neither the Republican

Party nor the SRAC are entitled to attorneys’ fees pur-

suant to 42 U.S.C. §§ 1973l(e) and 1988. While each plain-

tiff was a prevailing party on minor issues, their success

was too technical or de minimis to justify an award of

attorneys’ fees. Therefore, the petitions of the Republican

Party and the SRAC for attorneys’ fees must be denied.

IT IS SO ORDERED this 15th day of December, 1995

at Columbia, South Carolina.

ENTERED for the court, with the concurrence of

Judge Anderson and Judge Hawkins.

/s/ Clyde H. Hamilton

CLYDE H. HAMILTON

UNITED STATES

CIRCUIT JUDGE

FOURTH CIRCUIT COURT

OF APPEALS