UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) STATE OF TEXAS, Plaintiff, ) ) ) ) v. ) UNITED STATES OF AMERICA, and JEFFERSON SESSIONS, in his official capacity as Attorney General of the United States, ) ) ) ) ) Civil Action No. 11-1303 (RMC)

Defendants, and WENDY DAVIS, et al. , Defendant-Intervenors. ) ) ) ) ) ) )
MEMORANDUM OPINION This motion for appellate attorn ey’s fees comes at the end of l ong and complex litigation under the Voting Rights Act. As Texas appealed the decision of a three-judge court in the United States District Court for the District of Columbia t hat certain of its 2011 redistricting plans could not be approved, the S upreme Court decided that the provision of the Voting Rights Act requiring Texas to obtain s uch approval was unconstitutiona l. Nonetheless, to the State’s consternation, this C ourt granted attorney ’s fees as “prevailin g parties” to Intervenor-Defendants who had challenged the new Texas di strict maps. Defendant-Inte rvenors now seek attorney’s fees for their successful def ense of the first fee award on app eal. The Court will grant in part and deny in part their motion.2 I. BACKGROUND After the 2010 Census, the State of Texas enacted redistricting plans for the Texas House of Representatives, the T exas Senate, and the United Stat es House of Representatives to reflect its growing population and n ew congressional seats. At that time, Texas was covered by Section 5 of the Voting Ri ghts Act of 1965, 52 U.S.C. § 10304(a ), which required covered jurisdictions seeking to change any voting pr ocedure to obtain either administrative preclearance from the Attorney General or judi cial preclearance from a three -judge court in the United States District Court for the Distr ict of Columbia. 52 U.S.C. § 10304 (a). The purpose of preclearance was to ensure that a proposed c hange “neither has the purpose n or will have the effect of denying or abridging the right to vote on account of race or color,” 52 U.S.C. § 10304(a), or language minority, id . § 10303. The State of Texas sought a decl aratory judgment that its propo sed redistricting plans had neither the purpose nor the effect of denying or abri dging the right to vote on account of race, color or language minor ity. The Federal Government op posed preclearance of the redistricting maps for the U.S . House of Representatives and fo r the Texas State House of Representatives but not the redis tricting map for the Texas Sta te Senate. Seven parties were granted Defendant-Intervenor sta tus, each of whom challenged as pects of all three maps as individual voters, elected State senators or representatives, o r civil rights advocacy groups. After a two-week bench trial, the three-judge court determined that Texas had acted with discriminatory purpos e or effect and denied preclear ance to all three redistricting plans, in whole or in part. See Texas v. United States , 887 F. Supp. 2d 133, 138-39 (D.D.C. 2012). Texas immediately filed a petition for certiorari to the Supreme Court, which was opposed by the Federal Government and Defendant-Intervenors. B efore the Supreme Court3 addressed the three-j udge court opinion in Texas v. United States , the Court invalidated Section 4 of the Voting Rights Act, whi ch required Texas, among other pol itical bodies, to submit to preclearance. See Shelby County v. Holder , 133 S. Ct 2612 (2013). The Supreme Court then vacated and remanded the decision in Texas v. United States to the three-judge district court panel to decide whether the cas e was moot. Texas moved to dism iss all claims as moot in light of Shelby County. The three-judge court agreed t hat the case was mooted both by Shelby County and by the State’s adoption of supe rseding redistricting plans, and so it was dismissed. See Mem. and Order [Dkt. 255]. The three-judge cour t then dissolved. See Order [Dkt. 263]. The case was returned to the undersigned, w ho had served on the three-judge court and to whom the case was originally assigned by random draw. Three of the Defendant-Interveno rs (hereinafter “Intervenors”) thereupon sought reimbursement for costs and legal fees incurred in the litigati on before the District Court. See Davis Mot. [Dkt. 256], Gonzales Mot. [Dkt. 257], NAACP Mot. [Dk t. 258]. The Davis Intervenors are Texas State senators and representatives from v oting districts in the Fort Worth area. The Gonzales Intervenors are a group of Hispanic and Bla ck Texas voters. The Texas State Conference of NAA CP Branches is a civil rights advocacy g roup concerned with minority voting rights in Texas. Texas opposed in an Advisory, argui ng that Intervenors were not prevailing parties for purposes of attorney’s fees. See Advisory [Dkt. 259]. On June 18, 2014, this Court granted Intervenors’ motion for attorney’s fees, after finding that they were prevailing parties and that the Texas Advisory had w aived most of the state’s righ ts to argue otherwise about fee entitlement or amount. The D.C. Circuit affirmed. See Texas v. United States , 49 F. Supp. 3d 274 (D.D.C. 2014), aff’d , 798 F.3d 1108 (D.C. Cir. 2015). When Texas appealed the D.C. Circuit decision on fees, the Supreme Court denied certiorari

. Texas v. Davis , 136 S. Ct. 981 (2016). Intervenors subsequently filed the instant motion for attorney’ s fees in the Circuit to recover fees and costs incurred in defending t he fee award before both the C ircuit and the Supreme Court. The D.C. Circuit remanded the motion because “[t]he motions and accompanying responses raise fact questions about the appropria te rates and hours for appell ate work done by intervenors’ counsel” that are best determ ined by the district court. D.C. Cir. Order 3/17/2015 [Dkt. 273]. The matter returned to the undersigned Judge.
II. LEGAL STANDARDS Once a party has established tha t it is entitled to attorney’s fees, a court must determine whether the fees sought are reasonable. In doing so, courts traditionally apply a threepart analysis: “(1) determin ation of the number of hours reaso nably exp[e]nded in litigation; (2) determination of a reasonable hourly rate or ‘lodestar’; 1 and (3) the use of multipliers as merited.” Save Our Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516, 1517 (D.C. Cir. 1988) (citing Blum v. Stenson , 465 U.S. 886 (1984)). To determine a reasonable hourly rate, courts consider three elements : “(1) the attorney’s billing pr actices, (2) the attorney’s skill, experience, and reputation and (3) the prevailing market rates in the relevant community.” Reed v. District of Columbia , 843 F.3d 517, 521 (D.C. Cir. 2016) (internal quotation marks and citation omitted).

1 The “lodestar” method, establis hed by the Supreme Court in Hensley v. Eckerhart , 461 U.S. 424, 434 (1983), is determined by multiplying “the number of hours reasonably ex pended on the litigation times a reasonable hourly rate.” Blum v. Stenson , 465 U.S. 886, 888 (1984)

. It is the approach followed by most federa l courts in fee award disputes. See Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002).5 Parties seeking fee awards mus t offer evidence, in addition to the attorney’s own affidavit, to demonstrate that t he fees requested “are in line with those prevailing in the community for similar services by lawyers of reasonably compara ble skill, experience, and reputation.” Covington v. District of Columbia , 57 F.3d 1101, 1108 (D.C. Cir. 1995) (quoting
Blum , 465 U.S. at 896 n. 11). Fee applications must “produce data concerning the prevailing market rates in the relevant co mmunity for attorneys of reasona bly comparable skill, experience, and reputation.” Id

. In determining the reasonabl e number of hours expended by attor neys, there must be a “good faith effort to exclude from a fee request hours tha t are excessive, redundant, or otherwise unnecessary.” Hensley v. Eckerhart , 461 U.S. 424, 434 (1983).
III. ANALYSIS Intervenors rely on th e explicit provision in the Voting Rights Act awarding attorney’s fees to prevailing pa rties who challenge a voting pl an or procedure. See 42 U.S.C. § 1988(b). There is no longer any q uestion but that Intervenor s are prevailing parties and are entitled to an award of reasonable attorney’s fees for their wo rk before the D.C. Circuit and the Supreme Court; that question was definitively settled by the D. C. Circuit in Texas v. United
States , 798 F.3d 1108 (D.C. Cir. 2015) (affi rming the district court’ s grant of attorney’s fees), and the Supreme Court’s refusal to hear the Texas petition for certiorari

. Texas v. Davis , 136 S. Ct. 981 (2016). 2 Texas challenges the hourly rat es billed for certain counsel for the Davis

2 To clarify for the reader, the C ourt mentions Intervenors’ st atus as prevailing parties only because the parties’ briefs on fees were submitted to the D.C. Circuit prior to the petition for certiorari filed by Texas and its denial by the Supreme Court, which reso lved the issue. At the time its brief was filed, Texas still hoped for success and arg ued that Intervenors were not entitled to fees, despite the D.C . Circuit decision to the cont rary. Opp’n to Mot. For Attorney Fees [Dkt. 281] at 2-3. On remand, the Court inv ited further b riefing but no party thought it necessary. See Court’s Minute Order 3/22/2016.6 Intervenors on both the appeal to t he D.C. Circuit and their op position to certiorari ; and the hourly rates for certain counsel f or the Gonzales Intervenors f or work on the appeal to the D.C. Circuit. Texas “does not object t o the requested hourly rates of the individuals representing the NAACP Appellees.” Opp’n to Mot. for Attorney Fees [Dkt. 281] a t 12; see also Opp’n to Supp. Mot. for Attorney’s Fees [Dkt. 284] at 1. In summary, Texas argues that t he hourly rates for all counsel and support staff for the Davis and Gonzales Intervenors should be limited to the Laffey Matrix 3 for fees used by the District of Columbia Offi ce of the U.S. Attorney (USAO). I n addition, Texas challenges the number of hours billed for cer tain work by the Gonzales Interve nors. All Intervenors contend that T exas waived any argument that the USAO Laffey Matrix should be used by failing to raise the objection during the litigation over trial fees. In general, under the law-of-the-cas e-doctrine, “a court involved in later phases of a lawsuit should not re-open questions decide d . . . by that court or a higher o ne in earlier phases.” Crocker v. Peidmont Aviation, Inc ., 49 F.3d 735, 739 (D.C. Cir. 1995). Th is principle does not apply in the current circumstances, in which t he fee dispute involves appell ate litigatio n, for which no previous award has been made. See Murchison v. Inter-City Mortg. Corp. Profit Sharing &
Pension Plans , 503 F. Supp. 2d 184, 191 (D.D.C. 2007) (order regarding trial fees not law-ofthe-case for post-trial litigation); see also Salazar ex rel. Salazar v. District of Columbia , 809 F.3d 58, 63-64 (D.C. Cir. 2015) (fees i n settlement order not l aw-of-the-case for fees for later stage of litigation).
A. Hourly Rates for the Davis and Gonzales Intervenors

3 The Laffey Matrix is an attorney’s fee matrix developed in Laffey v. Nw. Airlines, Inc. , 572 F. Supp. 354, 371 (D.D.C. 1983). It is discussed in greater detai l below.7 In determining the prevailing market rate, fee applicants may s ubmit their own survey of prevailing market rates or attorney’s fee matrices, w hich “provide a useful starting point” in calculating the prevailing market rate. Covington , 57 F.3d at 1109. The Laffey Matrix is the most commonly used fee ma trix in determining fees for co mplex federal litigation in the D.C. Circuit. It was developed t o reflect prevailing rates for work done in 1981-1982 in Laffey v. Nw. Airlines, Inc. , 572 F. Supp. 354, 371 (D.D.C. 1983), aff’d in part, rev’d in part on other grounds, 746 F.2d 4 (D.C. Cir. 1984), overruled in part on other grounds , Save Our Cumberland Mountains, Inc. v. Hodel , 857 F.2d 1516 (1988). The Laffey Matrix has since been updated several times, leading to compe ting matrices, two of which are relevant to this case. The first Laffey Matrix, known as the USAO Laffey Matrix, is maintained and updated by the United States Attorn ey’s Office for the District of Columbia. See USAO Laffey Matrix 2015-2017, available at https://www.justice.gov/usao-d c/file/889176/download. The
USAO Laffey Matrix adjusts the original 1980s rates to account for inflatio n by using the Consumer Price Index for All Urba n Consumers (CPI-U) of the Uni ted States Bureau of Labor Statistics. The CPI-U measures p rices across several commoditi es in a specific geographic area, in this case, the Washington D.C . Metropolitan Area. The secon d Laffey Matrix, known as the
LSI Laffey Matrix, relies on the Legal Ser vices Index of the Bureau of La bor Statistics, which provides national legal rates ad justed for inf lation, rather th an local and generalized cost data.
See LSI Laffey Matrix, available at http://www.laffeymatrix.com/see.html. Intervenors ask for fees that reflect their billing rates to pr ivate clients while Texas argues that the USAO Ma trix should govern. In response, Intervenors insist that if a Laffey Matrix is to be applied, the mo re generous LSI Matrix — based on legal rates on a8 national basis, not general commod ities in the local area (incl uding much more than legal rates) — is more appropriate. Both Matrices have been approved i n this District and the selec tion of one over the other depends on whether fee applicants have shown that the ir preferred Matrix reflects prevailing rates for comparable work. In Eley v. District of Columbia , 793 F.3d 97 (D.C. Cir. 2015), the D.C. Circuit vacated and remanded an award of attorn ey’s fees under the LSI Matrix for litigation under th e Individuals with Dis abilities Educatio n Act (IDEA), 20 U.S.C. §§ 1400 et
seq ., because the fee applicants had failed to produce evidence th at the LSI Matrix rates were in line with prevailing rates for other IDEA litigation. Id . at 104-05. On remand, t he District Court found that “‘there is a submark et in which atto rneys’ hourly fe es are generally lower than the rates in either of the Laffey Matrices.’” Eley v. District of Columbia , No. 11-cv-309 (BAH), 2016 WL 4435187, at *8 (D.D. C. Aug. 22, 2016) (quoting Salazar , 809 F.3d at 64). Nonetheless that court awarded fees under the USAO Matrix because it found that IDEA litigation is complex federal litigation. 4 Id . Using reasoning similar to that in Eley , Heller v. District of Columbia , 832 F. Supp. 2d 32, 47-48 (D.D.C. 2011), relied on the USAO Mat rix for a fee award to small law firms conducting complex federal litigation because, it con cluded, the LSI Matrix is based on rates for the District of Col umbia’s largest law firms and s hould not be used for smaller firms that generally charge at lower rates.
In Salazar , the D.C. Circuit affirmed an a ward of attorney fees under the LSI Matrix following litigation of a class action on behalf of Medi caid claimants under 42 U.S.C. §

4 Courts in this Distr ict have different opinions on whether IDE A litigation is sufficiently complex to warrant the use of a Laffey matrix. Compare McAllister v. District of Columbia , 21 F. Supp. 3d 94, 108-10 (D.D.C. 2014) (no) and Merrick v. District of Columbia , 134 F. Supp. 3d 328, 339 (D.D.C. 2015) (yes).9 1983. Salazar , 809 F.3d 58. The Salazar court noted that there was no evidence that the fee applicants were part of a submar ket in which attorneys’ rates w ere generally lower, and therefore analyzed prevailing rat es for complex feder al litigation in Was hington, D.C. generally. Id . at 64. Salazar reviewed copious evidence “rega rding prevailing market rates f or complex federal litigation” including an affidav it of the economist who develop ed the LSI Laffey Matrix explaining why it “is a better measure of t he change in prices for legal services in Washington, D.C. than the USAO update to the Laffey Matrix.” Id . In addition, Salazar cited evidence of “billing rates tables demonstra ting the differen ce between aver age national law firm rates and the LSI update to the Laffey Matrix, as well as the differen ce between average national law firm rates and the USAO update to the Laffey Matrix.” Id . at 65. Based on this evidence, Salazar concluded that “[f]or the same e xperience level in the same tim e frame, the LSI updated rate was closer to the average nat ional law firm rate.” Id

. Intervenors request hourly rates based on the actual rates they charge private fullpaying clients. While “an attorney ’s usual billing rate is pre sumptively the reasonable rate” this is only so when the “rate is in l ine with those prevailing in t he community for similar services by lawyers of reasonably comparable skill, experience, and reputat ion.” Kattan by Thomas v. District of Columbia , 995 F.2d 274, 278 (D.C. Cir. 1993) (quoting Blum , 465 U.S. at 895 n. 11). Intervenors have presented affi davits and biographies of their attorneys, time records, and the National Law Journal Billing Survey of 2014. See Exhibits to Mot. for Attorney Fees [Dkt. 280]. This evidence does not satisfact orily establish that the billin g rates for all of Int ervenors’ counsel are the prevailing market rates for similar services in Voting Rights Act litigation for attorneys with comparable sk ills and reputation.10 There is no doubt that the litiga tion involved in this case was complex federal litigation. Indeed, Texas does not dispute that fact. Before the Supreme Court, Plaintiffs relied on experienced Supreme Court advocates and succeeded in persuad ing the Court to decline to review Intervenors’ fee awards f or trial-level work, as to whic h Texas had conceded much in its Advisory. See Texas v. Davis , 136 S. Ct. 981 (denying certiorari ); see also Texas v. United
States , 798 F.3d 1108 (affirming denial of fees). Balancing all of these factors a nd case preceden ts, especially the skills and reputations of the attorneys i nvolved, the Court finds that the appropriate prevailing market rate is provided by the LSI Laffey Matrix. In fact, Intervenors’ pr oposed rates are generally in line with the LSI Matrix, and therefo re the Court finds them to be r easonable, with three exceptions. First, the Davis Interveno rs seek a rate of $1,100 (2014) and $ 1,150 (2015) per hour for the work of Paul Smith, a partner at C ovington who has over 30 years of experience; the LSI Matrix suggests top rates of $789 ( 2014) and $796 (2015) per hour for attorneys with more than 20 years of experience. 5 Second, the Davis Intervenors seek an hourly rate of $650 in both 2014 and 2015 for J. Gerard Hebert, a na tionally renowned subject-ma tter expert on the Voting Rights Act with over 40 years of experi ence and who contributed substa ntially to the litigation, a rate that is less than the LSI Matri x for an attorne y with his years of experience. Third, the Davis Intervenors seek $325 (2014) a nd $355 (2015) per hour for the w ork of Cheryl L. Olson, a nonattorney at Covington, while the LSI Matrix rates for a non-att orney are $195 (2014) and $196 (2015) per hour. Accordingly, the C ourt will award fees to the Davis Intervenors for the work of

5 The LSI Laffey Matrix provides rates for eac h year running from June 1 to May 31 of the following year, rather than from January to December of the sam e year. The Court will use the period from June 1, 2014 to May 31, 2015 for the 2014 rates and the period from June 1, 2015 to May 31, 2016 for the 2015 rates.11 Mr. Paul and Mr. Hebert at the r ates under the LSI Matrix for a ttorneys with over 20 years of experience in each year $789 (2014) and $796 (2015) and for the work of Ms. Olson at the rates under the LSI Matrix for non-at torneys in each year $179 (2014) and $180 (2015).
B. Hours Billed to the Gonzales Intervenors In order to satisfy the burde n of justifying the number of hour s billed, fee applicants must provide supporti ng documentation “of sufficient detail and probative value to enable a court to determine w ith a high degree of certainty tha t such hours were actually and reasonably expended.” Role Models Am., Inc. v. Brownlee , 353 F.3d 962, 970 (D.C. Cir. 2004) (citations omitted). Such documentation can consist of “conte mporaneous time records of hours worked and rates claimed, plus a detailed descrip tion of the subject matter of the work with supporting documents, if any.” In re Donovan , 877 F.2d 982, 994 (D.C. Cir. 1989). The fact that Defendant-Intervenors were prevailing parties for the purp oses of this fee application “may say little about whether the expenditure of counsel’s time was reasonable in relation to the success achieved.” Hensley , 461 U.S. at 436. As Hensley noted, “[c]ases may be overstaffed, and the skill and experience of l awyers vary widely” and theref ore “counsel for the prevailing party should make a good faith effo rt to exclude from a fee req uest hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in privat e practice ethically is obligated to exclude such hours from his fee submission.” Id . at 434. The Gonzales Intervenors reque st attorneys’ fees for 96.6 total hours. Mot. for Attorney Fees at 7. Texas objects to certain hours billed to t he Gonzales Intervenors for three filings. Opp’n to Mot. for Attorn ey Fees at 13-14. First, Tex as objects to 7.6 hours in attorney fees for preparing a motion for extension of time that was neve r filed to respond to the State’s motion for summary reversal. Id . at 14-15. Second, Texas objects to 48. 2 attorney hours and 2.112 staff hours for work on the Gonzal es Intervenors’ response to t he State’s motion for summary reversal. Texas argues that the se Intervenors largely adopted the Davis Intervenors’ brief and that their attorneys’ work was duplicative and unnecessary. Id . at 15-16. Third, Texas challenges 30.5 hours billed for work on the Inter venors’ joint brief before the D.C. Circuit on the merits. Texas argues that t he Davis Intervenors billed 100 hours for the same brief and the attorney hours billed to the Gon zales Intervenors are duplicati ve and unnecessary. Id . at 16-17. Conscious of the Supreme Court’s words that “trial courts need not, and indeed should not, become green-eyeshade accountants,” Fox v. Vice , 563 U.S. 826, 383 (2011), and bearing in mind that the “esse ntial goal in shifting fees . . . is to do rough justice, not to achieve auditing perfection,” id. , the Court finds that the hours billed on behalf of the Gonzales Intervenors in opposing the Texas m otion for summary reversal b efore the D.C. Circuit and attorney work on the joint brief on the merits are reasonable. The question of whether a single judge court had the authority t o issue a fee award was not triv ial and the hours expended were not unreasonable. Similarly, the G onzales Intervenors’ attorne ys’ role in draf ting portions of the merits brief in the D.C. Circuit is legitimate time spent in th is litigation. On the other hand, the Court finds that the 7.6 hours bi lled for preparing a motion fo r extension of time that was never filed were unnecessary, did not reasonably add to the litigants ’ success, and would not have been billed to a private client who car efully checks its fee stateme nts. The attorney fees sought for these hours by the Gonzales Intervenors hours will not be award ed.
IV. CONCLUSION For the foregoing reasons, the Court will award fees to the Dav is Intervenors for the work of attorneys Paul Smit h and J. Gerard Hebert at the ra tes consistent with the LSI Laffey Matrix of $789 (2014) and $796 (2015) pe r hour. The Court will award fees to the Davis13 Intervenors for the work of non-a ttorney Cheryl L. Olson at a r ate consistent for non-attorneys under the LSI Laffey Matrix of $179 (2014) and $180 (2015) pe r hour. The Court will reduce the fee award to the Gonzales Intervenors by 7.6 hours for work don e on a motion for extension of time that was never filed. The remaining hours and rates reque sted by Intervenors are reasonable and shall be granted. A memoria lizing order accompanies this o pinion.

Date: March 30, 2017 /s/ ROSEMARY M. COLLYER United States District Judge