United States Court of Appeals, District of Columbia Circuit
Argued April 21, 2015.
Appeal from the United States District Court for the District of Columbia. (No. 1:11-cv-01303).
Matthew H. Frederick, Deputy Solicitor General, Office of the Attorney General for the State of Texas, argued the cause for appellant. On the briefs were Ken Paxton, Attorney General, Scott A. Keller, Solicitor General, Adam W. Aston, Deputy Solicitor General, and Arthur C. D'Andrea, Assistant Solicitor General.
Paul M. Smith argued the cause for appellees. With him on the brief were Jessica Ring Amunson, Mark P. Gaber, John M. Devaney, Marc Erik Elias, Robert S. Notzon, J. Gerald Hebert, Renea Hicks, and Chad W. Dunn.
Before: MILLETT and PILLARD, Circuit Judges, and SENTELLE, Senior Circuit Judge. OPINION filed by Circuit Judge MILLETT.
Millett, Circuit Judge :
The State of Texas appeals the district court's award of attorneys' fees to three intervenors in Texas's lawsuit under Section 5 of the Voting Rights Act, 52 U.S.C. § 10304. Rather than file a memorandum of points and authorities opposing the three separate motions for attorneys' fees as expressly required by court rules, Texas filed a three-page " Advisory" that presented only a brief contention that the Supreme Court's invalidation of Section 4 of the Voting Rights Act in Shelby County v. Holder, 133 S.Ct. 2612, 186 L.Ed.2d 651 (2013), automatically made Texas a " prevailing party." Beyond that, Texas offered no response to the arguments in the parties' motions and ignored complicating procedural factors in the case. In its " Advisory," Texas also declared that it would not participate any further in its own lawsuit unless " requested to do so" by the district court.
Applying one of its local rules, the district court held that Texas had conceded virtually all of the issues relevant to the motions for attorneys' fees by deliberately choosing not to address them. Rejecting Texas's cursory " Advisory" argument, the district court granted the motions and awarded fees. We affirm because " the discretion to enforce this rule lies wholly with the district court," FDIC v. Bender, 127 F.3d 58, 68, 326 U.S.App.D.C. 390 (D.C. Cir. 1997), and Texas forfeited any challenge to the district court's exercise of that discretion by failing to even mention the issue in its opening brief in this court.
District of Columbia District Court Rule 7(b)
District Court Local Rule 7(b) requires that any party opposing a motion must " serve and file a memorandum of points and authorities in opposition to the motion," and that " [i]f such a memorandum is not filed within the prescribed time, the Court may treat the motion as conceded." D.D.C. Local Rule 7(b). " The rule is understood to mean that if a party files an opposition to a motion and therein addresses only some of the movant's arguments, the court may treat the unaddressed arguments as conceded." Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (citing Hopkins v. Women's Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003)). " Such a concession acts as [a] waiver, such that a party cannot raise a conceded argument on appeal." Id. (internal quotation marks and brackets omitted).
The Voting Rights Act
Congress enacted the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, " to banish the blight of racial discrimination in voting[.]" South Carolina v. Katzenbach, 383 U.S. 301, 308, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Section 2 of the Act, which applies nationwide, bans any " standard, practice, or procedure" that " results in a denial or abridgement of the right of
any citizen * * * to vote on account of race or color [or membership in a language minority group]." 52 U.S.C. § 10301(a).
Section 5, which applies only to certain jurisdictions, provides that, " [w]henever" a covered jurisdiction seeks to change any voting procedure, it must first obtain administrative preclearance from the Attorney General or judicial preclearance from a three-judge court in the United States District Court for the District of Columbia. 52 U.S.C. § 10304. A jurisdiction may obtain preclearance only if it proves that its change in voting procedures " neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color [or membership in a language minority group]." Id. § 10304(a). Section 4 provides criteria, commonly known as the " coverage formula," that determine which jurisdictions are subject to the preclearance requirement. See id. § 10303(b); see also Shelby County, 133 S.Ct. at 2619-2620.
In Shelby County, the Supreme Court declared Section 4's coverage formula unconstitutional. See 133 S.Ct. at 2630-2631. The Court was explicit that it was " issu[ing] no holding on § 5 itself, only on the coverage formula." Id. at 2631.
The Voting Rights Act also includes an attorneys' fees provision that states: " In any action or proceeding to enforce the voting guarantees of the fourteenth or fifteenth amendment, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee, reasonable expert fees, and other reasonable litigation expenses as part of the costs." 52 U.S.C. § 10310(e).
Factual and Procedural Background
Following the 2010 census, the Texas Legislature enacted redistricting plans for the Texas House of Representatives, the Texas Senate, and the United States House of Representatives. At the time, Texas was a covered jurisdiction under Section 5 of the Voting Rights Act, so it had to obtain administrative or judicial preclearance before any redistricting plan could take effect. Texas chose to file suit before a three-judge panel of the United States District Court for the District of Columbia, rather than to seek administrative preclearance. See Texas v. United States, 887 F.Supp.2d 133, 138 (D.D.C. 2012).
In its complaint, Texas sought a declaratory judgment that its redistricting plans complied with Section 5. Texas made no challenge to the constitutionality of either Section 5's preclearance requirement or Section 4's coverage formula. Complaint 1, J.A. 66 (" This complaint is filed under the assumption that Section 5 complies with the United States Constitution." ). Texas purported initially to " reserve all applicable legal claims * * * pending" the district court's " decisions in Shelby County, Ala. v. Holder, No. 10-00651 (D.D.C.), and Laroque v. Holder, No. 10-00561 (D.D.C.)," two cases in which different plaintiffs had challenged Section 5's constitutionality. Complaint 1-2, J.A. 66-67. But when the district court asked Texas whether it wanted to amend its complaint to include any constitutional claims, 12/7/2011 Tr. at 32, ECF No. 113, Texas ...