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DOJ Raises Immunity Issues in Fee Request

December 18, 2013 | Posted in : Expenses / Costs, Fee Entitlement / Recoverability, Fee Jurisprudence, Fee Request, Prevailing Party Issues

A recent NLJ story, “After Supreme Court Win, Voting Rights Act Challengers Seek Fees,” reports that following a bitter legal battle before the U.S. Supreme Court over the scope of the Voting Rights Act, the challengers are again fighting the federal government – this time over legal fees.  In June, a divided Supreme Court sided with Shelby County, Ala., in striking down a key section of the voting rights law.  Shelby County’s lawyers from Wiley Rein want a federal trial judge to order the government to pay more than $2 million in attorney fees and expenses.

The Supreme Court, in a 5-4 decision, struck down Section 4 of the Voting Rights Act.  The provision laid out the formula for determining which jurisdictions were required to seek approval from the DOJ or federal court before changing how they ran elections.  Under the voting rights law, a party who sued to enforce the “voting guarantees” of the fourteenth or fifteenth amendments could seek attorney fees if they won.

The DOJ opposes the fee request.  In papers filed on Dec. 6, lawyers for the government argued the government was immune to a fee award – and even if it wasn’t, Shelby County’s lawsuit didn’t include the type of claims that would trigger the voting rights law’s fee-shifting provision.

DOJ lawyers argued in court papers that Shelby County – despite prevailing in the high court – is not entitled to fees.  The federal government is immune to fee awards unless a statute says otherwise, they said, and the Voting Rights Act didn’t include language waiving that immunity.  The DOJ went on to say that parties that prevail in challenging the enforcement of protected voting rights could collect fees only if they proved the government’s position was “frivolous, vexatious, or harassing in nature.”